THE  STAT 
THE  NATION 


EDWARD  JENK 


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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

RIVERSIDE 


THE 
STATE  AND  THE  NATION 


THE  STATE 
AND  THE  NATION 


BY 


EDWARD  JENKS,  M.A.,  B.C.L. 

AUTHOR  OF 

"LAW  AND  POLITICS  IN  THE  MIDDLE  AGES," 
"A  SHORT  HISTORY  OP  POLITICS,"   ETC. 


NEW  YORK 

E.  P.  DUTTON  y  COMPANY 
681  FIFTH  AVENUE 


COPYRIGHT,  1919 
BY  E.  P.  BUTTON  &  COMPANY 


All  Rights  Reserved 


Firtt  printing May,  1919 


Printed  In  the  United  States  of  America 


PREFACE 

THIS  book  is  an  expansion  of  a  little  work  contributed 
nearly  twenty  years  ago  to  the  Temple  Primer  series,  un- 
der the  title  A  Short  History  of  Politics,  which  has  for 
some  time  been  out  of  print.  Of  its  imperfections  no  one 
can  be  more  painfully  conscious  than  the  writer.  But  he 
ventures  to  think  that  the  unexpected  welcome  given  to 
the  Primer  volume  shows  that  there  is  a  real  demand  for 
a  popular  statement,  in  simple  terms,  of  the  main  lines  of 
social  and  political  evolution,  and  that  even  the  dangers 
necessarily  attendant  upon  broad  and  general  statements 
ought  not  to  prohibit  an  honest  attempt  to  satisfy  this 
reasonable  demand. 

The  study  of  social  and  political  problems  (which  are 
now  seen  to  be  inseparably  intermingled)  is  no  longer  a 
matter  exclusively  for  experts;  though  the  work  of  the 
expert  is  now  more  important  than  ever  before.  And  it 
is  one  of  the  most  hopeful  signs  of  the  times,  that  many 
thousands  of  earnest  men  and  women,  now  endowed  with 
political  power,  are  taking  a  deep  and  serious  interest  in 
such  problems.  Many  of  these  students  have  little  leisure 
for  large  books,  and  little  familiarity  with  technical  lan- 
guage. But  they  have  a  keen  desire  to  know  something 
of  the  way  in  which  society  assumed  its  present  complex 
character;  for  in  that  knowledge  they  believe  to  lie  the 
key  to  the  solution  of  many  problems  of  urgent  practical 
importance. 

It  is  the  hope  of  the  writer  that  this  book  may  be  use- 


vi      THE   STATE   AND   THE   NATION 

ful  to  such  students,  and  that  they  may  be  led  by  it  to 
pursue  their  studies  into  works  of  authority  and  research, 
without  failing  to  realise  how  closely  interwoven  are  the 
various  interests  of  mankind,  and  how  a  successful  civilisa- 
tion depends  upon  the  hearty  co-operation  of  men  and 
women  in  all  walks  of  life  in  furthering  the  common  good. 

E.J. 
LONDON, 
February, 


CONTENTS 

PAGE 

PREFACE  v 

INTRODUCTORY 

CHAP. 

I.  THE  SUBJECT  AND  ITS  TERMS i 

PART  I.— PRIMITIVE  INSTITUTIONS 

n.  PRIMITIVE  INSTITUTIONS 19 

PART  II— PATRIARCHAL  INSTITUTIONS 

m.  KINSHIP  THROUGH  MALES 37 

IV.  THE  ORGANISATION  OF  PATRIARCHAL  SOCIETY  ....  48 

V.  PATRIARCHAL  RELIGION 61 

VI.  PATRIARCHAL  LAW .  71 

VII.  THE  INTRODUCTION  OF  AGRICULTURE 86 

VIII.  COMMERCE  AND  CRAFTSMANSHIP 102 

PART  HI— POLITICAL  SOCIETY 

IX.  THE  BIRTH  OF  THE  STATE 121 

X.  THE  STATE  AND  FEUDALISM 135 

XI.  EARLY  POLITICAL  INSTITUTIONS 150 

XII.  THE  STATE  AND  PUBLIC  ORDER 165 

XIII.  THE  STATE  AND  POLITICAL  REPRESENTATION    ....  183 

XTV.  THE  STATE  AND  LEGISLATION 199 

XV.  THE  STATE  AND  PROPERTY 218 

XVI.  THE  STATE  AND  INDUSTRY 241 

XVII.  KINDS  OF  STATES 259 

XVIII.  PROPOSALS  OF  CHANGE 276 

DIAGRAM  A 304 

DIAGRAM  B 305 

INDEX 306 


vii 


THE 
STATE  AND   THE  NATION 

CHAPTER  I 

THE  SUBJECT  AND  ITS  TERMS 

THE  history  of  politics  is  a  branch  of  the  greater  history  of 
civilisation.  And  the  history  of  civilisation  is  the  history 
of  human  efforts  to  supply  human  needs,  and,  especially 
and  primarily,  the  history  of  efforts  made  conjointly,  i.e.  in 
CO-OPERATION,  by  human  beings,  to  achieve  a  satisfaction 
of  their  mutual  needs.  For,  while  it  is  possible  to  imagine  a 
civilisation  built  up  by  the  unaided  efforts  of  isolated  in- 
dividuals, such  a  civilisation  would  be  a  thing  very  different 
from  the  civilisation  which  we  know,  and,  probably,  very 
inferior  to  it.  The  fact  of  COMMUNITY,  i.e.  the  fact  that  | 
human  beings  can,  and  do,  combine  to  further  common  1 
ends,  is  the  cardinal  fact  in  the  history  of  civilisation,  and 
pre-eminently  in  the  history  of  politics. 

It  is  interesting,  and  not  unprofitable,  to  speculate  about 
the  origin  of  this  vitally  important  fact.  When  we  think 
of  the  immense  difficulty,  even  at  the  present  day,  of  get- 
ting people,  even  educated  people,  to  work  harmoniously 
for  an  end  which,  in  theory,  they  all  admit  to  be  desir- 
able, we  stand  amazed  at  the  difficulties  which  must  have 
faced  the  primitive  co-operator.  Remember,  that  he  was 
dealing  with  a  group  of  individuals  without  any  conscious- 
ness of  a  common  history,  without  foresight,  perhaps  with- 
out any  articulate  speech,  liable  to  sudden  impulses  of 
fear  and  anger,  incapable  of  perseverance,  with  only  the 
feeblest  and  roughest  mechanical  equipment,  whether  of 


2   THE  STATE  AND  THE  NATION 

weapons  or  tools.  Happily,  he  was  powerfully  aided  by 
the  circumstances  of  the  case.  Man  is  born  into  a  universe 
which  he  is  powerless  to  alter,  governed  (though  he  does 
not  know  it)  by  laws  which  he  does  not  understand;  and 
yet  he  is  dependent  on  this  unalterable,  mysterious  uni- 
verse— what  we  call  his  environment — for  his  very  exist- 
ence. It  is  a  grim  problem;  and  its  alternatives  are  very 
simple.  Man  must  solve  it  or  perish  miserably. 

Now  it  is  possible  to  imagine  that,  in  certain  parts  of  the 
world,  the  problem  of  existence  was,  at  any  rate  in  the 
earliest  days,  comparatively  easy.  Where  the  climate  and 
soil  were  good,  and,  consequently,  ready  food  abundant, 
men  would  learn  to  help  themselves  spontaneously,  as  a 
chicken,  hatched  in  an  incubator,  will  pick  up  groats  on 
the  second  day  of  its  independent  existence.  But,  even  in 
these  favoured  regions,  the  existence  of  such  ideal  condi- 
tions would,  of  itself,  tend  to  stiffen  the  problem;  for  it 
would  lead  to  the  rapid  increase  of  numbers,  and,  there- 
with, to  that  "pressure  of  population  on  the  means  of 
subsistence"  with  which  text-books  of  political  economy  are 
painfully  familiar — to  say  nothing  of  the  probability  that 
such  prolific  conditions  would  produce  powerful  enemies, 
like  the  tiger  of  India  and  the  crocodile  of  the  African 
creeks.  Thus,  even  in  such  places,  that  "struggle  for  ex- 
istence" (not,  as  a  travesty  puts  it,  with  or  against  his 
fellow-man,  but  against  the  pressure  and  dangers  of  his 
environment),  which  is  the  dominating  fact  of  the  his- 
tory of  Man,  would  in  time  cast  its  shadow  even  over  these 
favoured  lands,  and  the  Golden  Age  would  become  the  Age 
of  Iron. 

It  is  impossible  to  doubt  that  it  was  the  pressure  of  this 
struggle  for  existence  which  was  the  most  powerful  factor 
in  developing  the  capacity  for  co-operation  among  men. 
In  its  most  rudimentary  form — that,  for  example,  dis- 
played by  a  pack  of  wolves  in  hunting  its  prey — the  fac- 
ulty of  co-operation  is  almost  always  found  in  connection 
with  the  quest  of  food  or  the  defence  against  attack  by 
hostile  force.  And  we  can  hardly  doubt  that  it  was  this 


THE  SUBJECT  AND  ITS  TERMS   3 

constant  pressure  which  gradually  converted  the  casual 
group  of  human  beings,  related  only  by  physical  ties  which 
they  but  faintly  understood,  into  a  SOCIETY,  or  body  of 
persona  engaged,  consciously  or  unconsciously,  in  uniting 
their  efforts  to  pursue  similar,  and,  ultimately,  even 
common  objects,  by  that  adaptation  of  means  to  ends 
which  is  the  work  of  intelligence.  We  need  not  suppose 
that  any  definite  "public  spirit,"  or  desire  to  benefit  the 
members  of  the  group  as  a  whole,  animated  the  earliest 
societies  of  men,  and  kept  primitive  savagery,  with  its  out- 
bursts of  self-assertive  fierceness,  in  check.  It  was  suf- 
ficient that  each  member  should  feel  that,  by  working  with 
his  fellow-members,  instead  of  against  them,  he  was  fur- 
thering his  own  ends.  By  so  doing,  he  was  learning  the 
priceless  lesson,  so  hard  to  master  in  its  fulness,  that  "no 
man  liveth  to  himself" — that  no  individual  can,  as  it  were, 
act  in  a  vacuum — that  individual  freedom  and  social  ac- 
tion, liberty  and  discipline,  are  only  different  aspects  of  the 
same  truth. 

But  this  capacity  for  co-operation  manifests  itself  in 
very  different  degrees,  and  in  many  directions;  and  one 
necessary,  though,  perhaps,  rather  dull  part  of  our  task,  is 
to  define  our  part  of  its  activities,  and  clear  up  a  few  of 
the  difficulties  to  which  a  lax  use  of  technical  terms  has 
given  rise.  There  are,  for  example,  careless  speakers  and 
writers  who  use  the  words  "State,"  "Nation,"  "Society," 
"Community,"  "Race,"  and  so  forth,  as  convertible  terms, 
or,  what  is  even  worse,  as  meaning  different  things  at  dif- 
ferent times  in  the  same  speech  or  book.  A  cynical  speaker 
might  defend  himself  by  claiming  that,  in  addressing  a 
popular  audience,  it  is  necessary  to  use  a  certain  amount  of 
inaccuracy  ir  order  to  be  listened  to.  The  writer  of  these 
pages  may,  perhaps,  be  forgiven,  if  he  regards  this  excuse 
with  scepticism,  and  prefers  to  treat  inaccuracy  and  shifti- 
ness of  language  as  blemishes  of  which  most  writers  (in- 
cluding himself)  are  at  times  guilty,  and  which  do  much 
to  lessen  the  value  of  the  majority  of  books  on  this  and 
kindred  subjects. 


4       THE   STATE   AND    THE   NATION 

Professor  Maclver,  whose  very  valuable  work,  Com- 
munity: A  Sociological  Study,  deserves  the  attention  of 
every  student  of  institutions,  defines  "society"  as  a  state 
of  willed  relationships  between  human  beings.1  To  the 
writer,  this  definition  appears  to  be  too  wide;  for  it  would 
include  merely  hostile  relationships,  which  would  seem  to 
be  inconsistent  with  the  very  idea  of  that  mutual  help 
which  is  at  the  basis  of  all  social  action.  In  these  pages, 
therefore,  the  term  "society"  and  its  equivalents  will  be 
confined  to  harmonious,  or,  at  least,  peaceful  relationships 
— a  practice  which  will  not  exclude  the  relationship  be- 
tween competitors,  which,  as  Professor  Maclver  well 
points  out,2  is  distinguished  from  mere  hostility,  by  the 
fact  that  it  recognises  and  submits  to  a  community  of 
interests,  more  important  and  more  powerful  than  rival- 
ries of  competition.  Thus,  for  example,  two  merchants,  or 
two  professional  men,  however  keen  their  rivalry,  will 
draw  the  line  at  murder,  robbery,  and,  in  most  cases,  what 
is  called  "unfair  competition";  and  this,  not  merely  be- 
cause they  fear  the  consequences  for  themselves1,  but  be- 
cause they  realise  that  both  of  them  belong  to  a  society 
whose  very  existence  would  be  imperilled  by  such  practices. 
In  war,  on  the  other  hand,  the  rival  forces  are,  alas!  bound 
by  no  such  consideration — a  truth  which  is  admitted  by 
the  general  recognition  of  the  fact  that  to  go  to  war  to 
"set  the  world  right"  is  not  merely  a  Quixotic  act,  but  an 
act  of  doubtful  morality.8 

But  if  we  may  not  accept  Professor  Maclver's  definition 
of  society,  we  may  gladly  follow  him  in  his  admirable 
analysis  and  explanation  of  the  different  kinds  of  societies. 
The  widest  of  all  is  that  vague  and  almost  indefinable  as- 
sociation which  he  calls  COMMUNITY,  whose  area  often  over- 

1  Page  5.  B  Community,  p.  334. 

"This  view  does  not  in  the  least  conflict  with  the  argument 
that,  before  deciding  that  danger  to  its  own  interests  justifies  it 
in  entering  a  war,  a  State  may  well  consider  also  the  probable 
effect  on  the  world  at  large  of  a  refusal  to  do  so.  There  is 
nothing  necessarily  hypocritical  in  such  an  attitude. 


THE  SUBJECT  AND  ITS  TERMS   5 

laps  the  boundaries  of  political  and  even  geographical 
units,  and  which  is  found  wherever  the  existence  of  com- 
mon interests  in  fact  leads  to  harmonious,  though,  possibly, 
unconscious  co-operation.  Thus,  at  least  until  the  splitting 
asunder  caused  by  the  Great  War,  the  peoples  of  Western 
Europe  and  the  United  States  of  America,  as  well  as  of 
the  great  self-governing  Dominions  of  the  British  Empire, 
were  a  true  community;  x  and  the  fact  that  harmonious 
relationships  extended  even  beyond  this  large  circle, 
though  in  gradually  lessening  intensity,  is  not  inconsistent 
with  the  usefulness  of  the  classification.  Such  a  com- 
munity, though  it  may  comprise  many  independent  and  self- 
governing  units,  may  even  develop  its  own  institutions  (p. 
9);  though  these  will,  naturally,  be  less  complete,  and 
more  liable  to  interruption,  than  those  of  more  highly  or- 
ganised societies.  Examples  of  such  institutions  are  copy- 
right and  postal  conventions,  peace  conferences,  and  sci- 
entific congresses,  and  wide  organisations  such  as  that  of 
the  Roman  Catholic  Church. 

Different  in  nature  from  these  vague  and  but  slightly 
organised  societies,  are  those  more  definite  bodies  which 
we  call  NATIONS.  These  societies  are  distinguished  from 
mere  communities  by  the  fact  that  they  claim  exclusive 
control  over  a  clearly  defined  area,  or  territory,  and  owe 
allegiance  to  a  common  government,  which  concerns  it- 
self with  the  general,  as  contrasted  with  specific  or  par- 
ticular, interests  of  their  members.  Whatever  may  be  the 
limits,  ideal  or  actual,  of  the  powers  of  each  government 
over  its  own  "nationals,"  as  to  which  something  will  have 
to  be  said  later  (p.  11),  it  is  clear  that,  according  to  pres- 
ent practice,  no  question  as  to  these  limits  can  be  raised 
by  any  other  government.  Again,  it  is  clear  that,  as  be- 
tween themselves,  the  more  powerful  of  these  governments 
recognise  no  binding  authority;  in  fact,  they  approach,  in 
theory,  as  nearly  as  possible  to  the  view,  fundamentally 

1  The  term  "civilisation"  may  be  preferred  as  an  alternative  to 
"community"  in  this  sense.  But,  to  the  writer,  it  suggests  a  kind 
or  way  of  living  rather  than  the  society  which  practises  it. 


6   THE  STATE  AND  THE  NATION 

false,  expressed  in  the  cynical  phrase:  homo  homini  lupus. 
This  unhappy  theory  of  SOVEREIGNTY,  propounded  with 
regret  by  some  of  the  great  thinkers  of  the  sixteenth  and 
seventeenth  centuries,  as  an  alternative  of  worse  evils, 
was  believed,  until  lately,  to  be  mitigated  in  practice  by 
the  somewhat  vague  recognition  of  a  so-called  "Law  of 
Nature,"  or  scheme  of  morality,  to  which  even  sovereign 
governments  professed  allegiance.  Recent  events  have, 
however,  shown  the  weakness  of  moral  ties,  that  is,  ties 
which  make  for  the  permanent  and  general  interests  of 
communities,  when  confronted  with  considerations  of  ex- 
pediency, based  on  the  immediate  interests  of  nations.  Of 
the  grave  issues  raised  by  this  conflict,  something  will  be 
said  later  on  (Ch.  XVIII).  Meanwhile,  attention  must 
be  drawn  to  a  term  which  is  often  used  as  an  equivalent  of 
"nation,"  but  which,  if  it  have  any  definite  meaning  at  all, 
should  be  carefully  distinguished  from  it. 

This  is  the  term  RACE,  i.e.  a  society  welded  together  by 
the  physical  tie  of  generation,  or  blood-relationship. 

The  causes  of  the  confusion  between  "nation"  and  "race" 
are  abundant  and  obvious.  We  shall  see,  as  we  proceed 
with  our  story,  how  a  certain  well-marked  stage  of  develop- 
ment in  progressive  societies  naturally  tends  to  emphasise 
the  importance  of  physical  relationship,  and  leads  to  what 
may  fairly  be  called  a  revolution  in  many  aspects  of  life. 
From  this  stage  many  active  and  prosperous  societies  have 
not  yet  emerged;  and  it  is  not  surprising  that  their  mem- 
bers continue  to  set  great  store  on  real  or  supposed  blood- 
relationship.  Among  more  advanced  peoples,  recent  dis- 
coveries and  speculations  in  physiology  have  tended  to 
emphasise  the  importance  of  inherited  characteristics.  The 
influence  of  such  discoveries  and  speculations  has  been  em- 
phasised by  the  charms  of  more  doubtful  sciences  or  pseudo- 
sciences — such  as  craniology  (study  of  skull-types),  somat- 
ology  (study  of  physical  characteristics  generally),  philology 
(study  of  the  structure  of  languages),  folk-lore  (study  of 
popular  legends),  and  the  like.  But  it  is  more  than  doubt- 
ful, whether  such  theories  of  "race"  are  not  dangerous  will- 


THE  SUBJECT  AND  ITS  TERMS   7 

o'-the-wisps  haunting  the  path  of  knowledge.  Claims  to 
purity  of  physical  descent  seem  somewhat  fantastic  to  the 
student  acquainted  with  modern  conditions  of  migration  and 
intercourse.  It  is  unquestionable  that  similarity  of  lan- 
guage, religion,  literature,  ways  of  living,  and  the  like,  are 
powerful  stimulants  of  social  intercourse;  though  there  are 
obvious  cases  in  which  some  of  them  are  not  found  neces- 
sary to  the  existence  of  a  nation.  Yet  it  is  probable  that 
we  can  hardly,  as  was  once  remarked  to  the  writer  by  a 
learned  historian,  define  a  "race"  more  exactly  than  as  "a 
body  of  people  who  wish  to  be  one";  and  to  regard  "race" 
and  "nation"  as  equivalent  terms  is  to  court  disaster,  both 
in  the  region  of  theory  and  the  arena  of  practice.  All  that 
we  can  say  is,  that  physical  relationship,  real  or  imaginary, 
has,  in  the  past,  played  a  large  part  in  causing  groups  of 
men  to  coalesce  into  a  society  of  such  cohesion,  that  they 
have  succeeded  in  the  difficult  task  of  evolving  a  common 
government,  and  thus  becoming  a  nation. 

Below  the  Nation,  again,  comes  another  very  large  class 
of  societies — so  large  and  so  comprehensive,  indeed,  that 
it  may  be  subdivided  into  many  smaller  classes.  But  the 
whole  of  these  societies  are  distinguished  from  communities 
and  nations  by  certain  well-marked  characteristics,  which 
it  is  therefore  useful  to  mention. 

First,  these  societies  are,  as  a  rule,  much  less  compre- 
hensive than  the  nations  within  which  they  exist.  Some 
of  them,  such  as  colleges,  ordinary  commercial  partnerships 
and  companies,  scientific  and  social  societies,  societies  for 
sport  and  amusement,  are  quite  small,  comparatively  speak- 
ing, in  numbers.  Others,  such  as  Trade  Unions  and  some 
religious  bodies  like  the  Wesleyan  Methodists,  are  large; 
but  still,  far  smaller  than  the  nation  in  which  they  are 
found.  Occasionally,  however,  these  societies  exceed  in 
numbers  many  nations,  and  extend  their  activities  over  the 
territories  of  many  nations.  A  notable  example  is,  as  we 
have  said,  the  Roman  Catholic  Church.  But  the  difficulties 
inevitably  encountered  by  such  societies  in  dealing  with  dif- 
ferent, and  (possibly)  conflicting  systems  of  national  law, 


8        THE   STATE   AND    THE   NATION 

render  their  existence  somewhat  suspect  in  influential  quar- 
ters; and  they  not  infrequently  come  into  conflict  with  that 
very  powerful  institution  of  national  life,  the  State,  of 
which  something  must  soon  be  said  (pp.  10-12). 

In  the  second  place,  these  more  limited  societies  are,  as 
a  rule,  both  consciously  and  voluntarily  formed,  as  con- 
trasted with  the  community  and  the  nation,  which  are 
often,  perhaps  usually,  formed  unconsciously,  by  the  gen- 
eral progress  of  events,  and  which  (in  the  case  of  the  nation, 
at  any  rate)  frequently  include  many  members  who  have 
never  voluntarily  joined  them.  In  fact,  anything  like  a 
claim  to  "compulsory  recruiting"  by  these  societies  is  re- 
garded with  instant  hostility  by  the  Nation,  which  sees  in 
such  a  claim  a  distinct  menace  to  its  own  position. 

Thirdly,  the  more  limited  societies  of  which  we  are  now 
speaking,  are  distinguished  by  the  quality  of  specialism; 
that  is,  their  objects  are,  usually,  restricted  and  defined  by 
their  charters,  rules,  or  other  constitutional  documents. 
Even  where  these  are  undefined  or  secret,  their  nature  and 
scope  are  fairly  well  understood;  for  example,  in  the  widely 
spread  organisation  of  Freemasonry.  Any  claim  of  uni- 
versal scope  would,  just  as  much  as  a  claim  of  compulsory 
jurisdiction,  at  once  arouse  the  jealousy  of  the  larger  society 
of  the  Nation. 

It  is  not  easy  to  find  a  name  sufficiently  comprehensive 
to  include  all  these  various  societies  and  yet  distinguish 
them  from  others;  but,  perhaps,  the  term  ASSOCIATION 
best  fits  the  want.  For  if  it  be  objected  that  "association" 
is  only  "society"  writ  large,  it  may  be  replied  that  the  term 
"association"  does,  to  most  people,  suggest  the  deliberate 
formation  of  a  society  for  a  specific  purpose;  which  is 
exactly  what  we  want  in  this  connection. 

We  have  now  distinguished  between  the  three  great  classes 
of  societies  with  which  the  history  of  politics  is  concerned. 
We  have  next  to  deal  with  the  instruments  by  which  these 
societies  accomplish,  more  or  less  perfectly,  their  objects. 

These  instruments  we  call  INSTITUTIONS;  and,  difficult 
as  may  be  the  task,  we  must,  if  we  are  to  keep  our  heads 


THE   SUBJECT   AND   ITS   TERMS      9 

clear,  try  to  understand  the  nature  of  an  "institution." 
One  way  of  attacking  the  difficulty  is,  to  consider  a  very 
favourite  metaphor  which  writers  and  thinkers  on  social 
sciences  have  for  centuries  employed  in  dealing  with  in- 
stitutions. This  is  the  metaphoi  which  speaks  of  political 
institutions  as  "organs  of  the  body  politic,"  ecclesiastical 
institutions  as  "organs  of  a  religious  body,"  and  so  on. 
The  writer  to  whom  reference  has  previously  been  made, 
Professor  Maclver,  protests  *  strongly  against  this  practice, 
and  shows,  with  much  force,  that  there  is  a  danger  lest  the 
metaphor  should  cease  to  be  regarded  as  a  metaphor,  and 
be  accepted  as  a  scientific  truth.  In  other  words,  a  society 
is  not  an  "organism";  because  its  members  have  each  a 
distinct  individuality,  which  the  parts  of  a  true  organism 
have  not,  and  because  it  has  no  consciousness,  as  distinct 
from  the  respective  consciousness  of  its  members.  But,  if 
this  limitation  be  conceded,  we  shall  still  find  it  useful  to 
speak  of  the  "organisation"  of  a  society,  and  of  its  in- 
stitutions as  its  "limbs"  or  "organs."  For  by  "institu- 
tions"  we  mean  permanent  arrangements  which  enable  a 
society  to  get  its  work  done  quickly  and  efficiently — 
usually  by  deputing  certain  of  its  members  or  employees 
to  do  certain  tasks  and  fill  certain  positions  whenever  oc- 
casion arises,  or  by  recognising  certain  events  as  giving  rise 
to  rights  and  duties  which  it  will  enforce,  or  by  practising 
certain  fixed  customs  or  ceremonies  which  will  (it  is  be- 
lieved) further  the  objects  of  the  society.  Thus,  doubtless, 
a  company  or  a  college  might,  conceivably,  select  special 
individuals  to  write  each  letter  which  it  has  occasion  to 
despatch,  or  to  receive  each  cheque  due  to  it,  or  to  admonish 
each  student  entrusted  to  its  care;  just  as  a  man  might  walk, 
now  on  his  hands,  now  on  his  feet,  now  on  his  knees.  But 
the  waste  of  time  and  energy  involved  in  such  a  procedure 
would  be  appalling.  And  so  a  society  appoints  certain 
persons  to  legislate  for  it,  others  to  judge  for  it,  others  to 

1  Community,  pp.  70-4.  One  false  deduction  from  the  use  of 
the  metaphor  is  that  societies  must  inevitably  grow  old  and  die 
(ibid.  pp.  202-5). 


10     THE   STATE   AND   THE   NATION 

receive  and  expend  its  money;  and  it  arranges  for  a  suc- 
cession to  their  duties  when  they  die  or  move  on.  Likewise 
it  may  prescribe  a  certain  method  of  procedure  or  ritual  to 
be  observed  at  its  meetings,  or,  instead  of  laboriously  de- 
ciding how  the  advantages  of  each  valuable  article  within 
its  orbit  shall  be  enjoyed,  it  may  lay  down  general  rules 
for  the  acquisition  of  rights  of  ownership,  and  so  on. 
Thus  kings,  magistrates,  forms  of  worship  and  debate,  prop- 
erty, contract,  and  other  INSTITUTIONS  accomplish  the 
work  of  societies,  as  the  limbs  of  the  human  body  achieve 
the  purposes  of  the  individual. 

One  of  the  most  important,  if  not  the  most  important,  of 
these  institutions  is  the  STATE.  As  we  shall  have  occasion 
to  see,  many  communities,  and  especially  the  great  com- 
munity previously  described  (p.  5),  have  never  developed 
it;  and  it  may  possibly  be  that,  in  the  future,  its  impor- 
tance will  diminish,  and  that  progress  will  ultimately  dis- 
card it.  But  at  present  it  is  so  prominent  in  the  most 
powerful  societies  in  the  world,  that  it  is  doubtful  whether 
any  society  could  claim  rank  as  a  nation  which  had  not 
produced  it,  its  forms  are  so  varied  and  so  interesting,  its 
claims  are  the  subject  of  such  keen  debate,  that  an  in- 
vestigation of  its  history  and  nature  will  be  a  substantial 
part  of  our  task.  At  this  point,  it  is  only  necessary  to 
utter  one  or  two  cautions  with  regard  to  the  meaning  of  the 
term,  and  its  use  in  these  pages. 

In  the  first  place,  then,  we  mean  by  the  STATE  the  in- 
stitutions by  which  government  is  carried  on.  In  some 
cases  (though  these  are  becoming  rarer  each  decade)  it  is 
correct  to  speak  of  the  State  as  a  single  institution,  with 
subordinate  institutions  under  its  control.  This  is  the  con- 
dition of  things,  for  example,  in  England,  where  King, 
Lords,  and  Commons,  in  Parliament  assembled,  exercise 
supreme  authority.  In  other  cases,  notably  in  the  British 
Empire  as  a  whole,  and  in  the  United  States  of  America,  the 
powers  of  government  are  shared  among  various  co-ordinate 
authorities — President,  Congress  and  Supreme  Court,  and 
again  between  federal  and  "State"  authorities  (in  the  Amer- 


THE   SUBJECT   AND   ITS   TERMS     11 

ican  use  of  the  word).  Here  it  would  be  more  correct  to 
describe  the  Federal  State  as  a  group  of  institutions  than 
as  a  single  institution. 

Again,  some  States  claim  complete  independence,  or 
"sovereignty,"  as  regards  all  external  authority;  others  do 
not.  Among  the  latter,  again,  some  claim  unlimited  author- 
ity over  their  citizens,  i.e.,  the  numbers  of  the  nations  of 
which  they  are  the  organs;  others  again,  as  in  the  case  of  the 
cantonal  governments  of  Switzerland  and  the  governments 
of  the  Provinces  of  Canada,  do  not.  All,  however,  in  greater 
or  less  degree,  claim  the  right  to  use  force  to  secure  obedience 
to  their  decrees.  We  shall  see  how  this  claim  arose  his- 
torically (Ch.  XVII),  and  shall  consider  the  justification 
for  it.  Here  we  need  only  point  out  how  the  existence  and 
general  recognition  of  this  claim  to  the  use  of  force  dis- 
tinguish the  State  from  all  other  institutions  of  society, 
and  place  it  in  a  class  apart  and  unique,  and  how  natural 
it  is  that  an  institution  with  such  claims  should  jealously 
watch,  and  deeply  resent,  any  rival  which  appears  to 
threaten  its  monopoly.  The  perennial  conflict  between 
Church  and  State  is  a  striking  example  of  this  truth.  Rival 
forces  operating  in  the  same  field  speedily  lead  to  conflict. 

But  there  is  a  real  danger  in  speaking  of  the  State  as  a 
conscious  being,  animated  by  such  human  passions  as 
jealousy  and  suspicion.  What  we  really  mean  in  using  such 
language  is,  that  the  men  who,  for  the  time  being,  control 
the  State  machinery,  having  a  certain  conception  of  the 
purposes  of  that  machinery  and  a  belief  in  its  power  and 
utility,  feel  bound  to  oppose  any  tendency  which  seems 
likely  to  diminish  that  power  and  utility.  They  believe,  or, 
at  least,  the  honest  and  upright  among  them  believe,  that 
the  safety  and  welfare  of  the  Nation  depend  upon  the 
maintenance  of  the  authority  of  the  State.  Some  go  fur- 
ther, and  seek  to  identify  the  Nation  and  the  State,  which 
is  mere  confusion  of  thought,  as  though  one  should  fail 
to  distinguish  between  the  mill-owner  and  his  machinery. 
Some,  again,  go  further  still,  and,  in  their  worship  of 
power  and  authority,  set  up  the  State  as  a  deity,  whom  to 


12     THE   STATE   AND   THE   NATION 

serve  is  the  highest  duty  of  the  citizen,  and  whose  greatness 
and  power  should  be  increased  by  all  means,  even  by  the 
sacrifice  of  the  lives  and  happiness  of  those  in  whose  inter- 
ests the  State  nominally  exists.  This  monstrous  perversion 
of  elementary  truths  would  appear  incredible,  were  it  not, 
unhappily,  too  obvious,  as  well  as  its  consequences.  A  clear 
thinker  can  only  regard  such  a  lapse  from  sanity  as  an 
unhappy  "reversion  to  type,"  a  "throw-back"  to  primitive 
Fetishism,  which  makes  of  its  ghastly  Ju-ju  an  instrument 
of  torture  and  terrorism.  That  such  an  obsession  should 
have  seized  the  minds,  not  of  Oriental  mystics,  but  of  pre- 
sumably cool-blooded  European  thinkers,  in  this  twentieth 
century,  is  one  of  the  saddest  facts  in  the  world's  history. 

Apart  from  these  excesses,  however,  the  activities  of  the 
State  play  such  a  dominant  part  in  modern  politics,  that 
any  attempt  to  penetrate  behind  it,  to  show  how  it  came  into 
existence,  or  to  describe  the  history  of  society  before  its 
appearance,  is  apt  to  be  derided  as  "mere  antiquarianism." 
It  may  be  well,  therefore,  at  this  stage,  to  say  a  very  few 
words  in  justification  of  the  earlier  chapters  of  this  work, 
which  will  deal  with  the  history  of  society  before  the  ap- 
pearance of  the  State. 

In  the  first  place,  then,  examination  of  the  earlier  stages 
of  society  is  justified  by  the  light  which  they  throw  upon 
the  nature  of  the  STATE  itself.  If  we  regard  the  State,  as 
do  those  writers  to  whom  we  have  alluded,  as  an  institution 
which  must  have  made  its  appearance,  or  which  is  so  essen- 
tial to  the  very  existence  of  human  society  that  such  society 
cannot  be  conceived  of  as  existing  without  it,  we  not  only 
ignore  a  vast  and  deeply  interesting  field  of  enquiry,  but 
we  necessarily  approach  the  study  of  the  State  from  a  pre- 
conceived or  a  priori  standpoint.  Two  evils  result  from 
this  attitude. 

The  first  is,  that  we  fail  utterly  to  understand  the  gen- 
eral outlook  on  life  of  those  vast  numbers  of  the  human 
race  who  are  still  living  in  the  pre-political  age,  and  thus, 
in  our  dealings  with  them,  are  apt,  with  the  very  best 
intentions,  to  make  the  most  disastrous  blunders,  which 


THE   SUBJECT   AND   ITS   TERMS     13 

way  involve  bloodshed  and  waste.  History  is  full  of  such 
blunders;  and  that  of  the  British  Empire  is  by  no  means 
free  from  them.  One  conspicuous  example  occurs  in  the 
dealings  between  the  Colonial  Office  and  the  Maoris  of  New 
Zealand  in  the  middle  of  the  nineteenth  century.  The 
Maoris,  a  brave  and  chivalrous  people,  were,  and  still  for 
the  most  part  are,  in  the  patriarchal  stage,  one  of  the 
fundamental  principles  of  which  is,  as  we  shall  hereafter 
see,  the  communal  and  inalienable  character  of  landowner- 
ship.  The  British  settlers  and  officials,  accustomed  to  re- 
gard land  as  individual  property,  bargained  with  individual 
Maoris  or  tribal  chiefs  for  the  acquisition  of  land,  oblivious 
of  the  fact  that,  according  to  Maori  ideas,  no  alienation 
of  land,  as  we  understand  it,  least  of  all  by  any  private 
occupant,  was  possible.  Consequently,  the  white  settler, 
who  had  acquired  his  land  by  purchase,  sometimes  with  the 
approval  of  his  Government,  found  himself  continually 
harassed  by  the  claims  of  the  tribesmen  on  whose  land  he 
had  settled,  which  claims  he,  naturally,  resented  fiercely, 
as  an  attempt  to  levy  blackmail.  Accusations  of  treachery, 
greed,  and  unscrupulousness,  equally  naturally,  were  made 
on  both  sides;  revenge  and  violence  inevitably  followed; 
and,  time  and  again,  the  country  was  desolated  by  cruel 
wars  between  two  peoples  who  had  many  affinities  of  char- 
acter, and  who,  after  ignorant  misunderstandings  had  been 
cleared  up,  became  good  friends.  An  even  more  glaring 
injustice  was  perpetrated  when,  after  the  final  submission  of 
the  Scottish  Highlands  which  followed  upon  the  Jacobite 
rising  of  1745,  the  lands  of  the  Scottish  clans  were  dis- 
posed of  by  a  "settlement"  which  treated  the  clan  chiefs 
as  absolute  owners  of  their  clan  districts;  and  much  of  the 
terrible  tragedy  of  Anglo-Irish  relationship  has  been  due 
to  a  failure  by  English  statesmen  to  grasp  the  fundamental 
attitude  of  the  Irishman  towards  land-ownership. 

A  second  evil  resulting  from  ignorance  of  early  social 
conditions  is,  an  almost  necessarily  prejudiced  view  of  the 
true  functions  of  the  State.  The  writer  of  this  book  is  well 
aware  of  the  danger  of  confusing  the  historical  origin  of  an 


14     THE   STATE   AND   THE   NATION 

institution  with  the  justification  for  its  existence,  or  the 
true  scope  of  its  functions.  But,  in  a  very  real  sense,  "the 
roots  of  the  present  He  deep  in  the  past" — or,  as  it  might 
almost  be  put,  the  present  is  the  past,  revealed  by  the 
progress  of  time.  Consequently,  unless  the  attitude  of  the 
student  of  political  institutions  be  one  merely  of  detached 
curiosity,  he  will  be  enormously  helped  in  his  estimate  of 
the  value  and  limitations  of  them  by  a  knowledge  of  what 
preceded  them.  For  although  it  may,  in  a  sense,  be  true, 
that  "institutions  are  not  made,  but  grow,"  yet  they  are  the 
work  of  human  beings,  who,  consciously  or  unconsciously, 
were  attempting  to  satisfy  human  needs,  and  who,  there- 
fore, worked,  wisely  or  unwisely,  towards  certain  ends.  It 
may  at  once  be  admitted,  that  this  book  does  not  pretend 
to  deal  with  final  VALUES — that  is  the  province  of  ethics, 
not  of  politics.  But  every  student  of  politics  is,  or  should 
be,  a  critic,  in  the  best  sense  of  the  term,  i.e.  a  person  who 
considers  how  far  any  given  political  institution  is  really 
suited  to  perform  the  functions  for  which  it  exists.  The 
old  view,  for  example,  that  the  British  Constitution  was  a 
Heaven-sent  and  final  revelation  of  the  highest  good  on  mat- 
ters political,  though  this  doctrine  may  once  have  served 
a  useful  purpose,  has  now  been  definitely  rejected,  as  a  be- 
lated survival  of  Ancestor-worship  in  a  society  which  had 
builded  better  than  it  knew. 

Once  more,  a  knowledge,  however  slight,  of  pre-political 
institutions  is  essential,  if  we  wish  to  understand  the  great 
variations  which  have  taken  place  in  the  development  of, 
political  institutions  issuing  from  the  same  source.  Broadly 
speaking,  the  political  institutions  of  Western  Europe, 
North  America,  Australasia,  and,  to  a  large  extent,  of  South 
Africa — that  is  to  say,  if  we  except  Japan,  of  the  leading 
nations  of  the  world — are  derived  from  those  immigrations 
from  the  East  which,  in  the  fifth  and  sixth  centuries  after 
Christ,  broke  up  the  Roman  Empire.  We  might  even  go 
further,  and  say  that  they  are  derived  from  one  particular 
group  of  those  immigrations — that  which  we  call,  for  want 
of  a  better  name,  "Teutonic";  for  the  more  brilliant,  but 


THE   SUBJECT   AND    ITS   TERMS     15 

less  enduring  conquests  of  the  Arabs,  which,  at  one  time, 
extended  from  Persia  to  the  Atlantic,  and  even  passed  over 
and  challenged  their  Teutonic  rivals  in  Spain,  have  left  but 
little  impression  on  the  political  institutions  of  the  world, 
while  their  allies,  the  Turkish  tribes,  though  they  suc- 
ceeded in  founding  the  two  European  States  of  Hungary 
and  Bulgaria,  for  the  most  part  achieved  nothing  beyond 
the  political  barrenness  of  the  Ottoman  Empire. 

How,  then,  are  we  to  account  for  the  infinite  variety  of 
political  institutions  which  cover  the  civilised  world  at  the 
present  day?  Ultimate  causes  are  to  be  found,  doubtless, 
in  climate,  character,  religious  and  scientific  ideals,  con- 
tests with  enemies,  and  even,  it  may  be,  in  the  somewhat 
speculative  influence  of  "race."  But  these  are  the  causes 
of  the  appearance  of  institutions,  rather  than  institutions 
themselves.  And,  if  we  ask  ourselves  why  institutions  is- 
suing from  the  same  source  assume  such  infinite  variety 
of  form,  we  shall  probably  find,  that  the  secret  lies  in  the 
extent  to  which,  and  the  manner  in  which,  they  are  related 
to,  and  connected  with,  the  pre-political  institutions  which 
they  have  followed.  It  is  true  that  no  mistake  could  be 
greater  than  that  which  regards  successive  stages  of  progress 
as  separated  from  one  another  by  sharp  lines.  That  is  a 
travesty  of  the  doctrine  of  evolution,  which  pictures  progress 
emphatically  as  a  slow  and  unconscious  development  of 
the  present  out  of  the  past.  But,  inasmuch  as  a  bold 
generalisation,  even  if  only  partially  true,  is  useful  as  a 
guide  through  a  maze,  the  writer  will  venture  to  suggest, 
as  one  of  the  great  laws  which  the  study  of  history  has 
seemed  to  reveal  to  him,  that  those  political  communities 
or  nations  have  been  most  successful,  which  have  most  com- 
pletely absorbed  into  their  political  institutions  the  social 
institutions  of  their  earlier  history.  Here  we  have  at  least 
a  glimpse  of  the  meaning  of  that  brilliant  historian  who 
wrote,  "All  history  is  a  seamless  web,"  and  of  that  mystic 
but  profound  dogma,  the  "unity  of  history."  We  may  now 
begin  our  study  of  the  history  of  society  before  the  appear- 
ance of  the  State. 


PART  I 
PRIMITIVE  INSTITUTIONS 


CHAPTER  II 

\ 

PRIMITIVE  INSTITUTIONS 

THIS  book  is  avowedly  written  on  evolutionary  lines,  that 
is,  in  the  belief  that  the  universe  is  governed  by  law.  It 
may  be  well,  therefore,  to  begin  with  a  few  words  of  ex- 
planation as  to  its  methods.  It  makes  no  extravagant 
claims  to  be  a  complete  explanation  of  all  difficulties,  or  to 
lay  down  an  absolutely  rigid  scheme  of  development.  The 
laws  of  progress,  naturally,  apply  only  to.  progressive  com- 
munities; and  progressive  communities  cover  but  a  com- 
paratively small  part  of  the  earth's  surface.  Even  amongst 
them,  there  are  different  degrees  and  rates  of  progress;  and 
stages  which  appear  to  be  normal  may,  owing  to  dominating 
physical  and  other  causes,  be  omitted.  A  conspicuous 
example  is  the  case  of  the  communities  which  have,  from 
time  immemorial,  inhabited  the  delta  of  the  Nile  and  the 
plains  between  the  Tigris  and  the  Euphrates  rivers,  where, 
owing  to  the  lack  of  great  forests,  the  well-marked  stage  of 
timber  buildings  is  absent  from  the  development  of  archi- 
tecture, and  the  use  of  bricks  early  made  its  appearance. 
In  other  cases,  notably  in  the  Indian  peninsula,  progress, 
after  making  considerable  way,  seems,  for  a  time,  to  have 
been  arrested.  All  that  is  claimed  is,  that,  where  social 
development  is  found,  it  naturally  proceeds  on  certain 
recognisable  lines;  that  is  to  say,  that,  where  the  latent 
capacities  of  mankind  have  won  their  way  to  fullest  ex- 
pression, they  have  done  so  by  steps  which  we  can  trace. 
Of  the  great  ethical  question:  What  is  the  end  and  aim  of 
progress?  it  is  not  proposed  to  treat.  That  is  for  other 
hands.  In  these  pages,  "progress"  implies  neither  praise 
nor  blame;  and  institutions  will  only  be  criticised  in  so  far 

19 


20     THE   STATE   AND   THE   NATION 

as  they  appear  to  succeed  or  fail  in  achieving  their  avowed 
purposes.  The  optimist  may,  if  he  chooses,  assume  that 
each  step  in  progress  indicates  a  real  advance  in  the  happi- 
ness of  mankind,  the  acquisition  of  ethical  values,  or  the 
purposes  of  a  Divine  ruler.  Such  a  belief  is  implied,  for 
example,  in  the  notion  of  blame  or  contempt  which  so  often 
attaches  to  the  use  of  the  terms  "savage,"  "barbaric,"  and 
other  names  used  to  indicate  communities  in  a  compara- 
tively undeveloped  condition.  On  the  other  hand,  the 
pessimist  and  the  doubter  may  rest  assured,  that  no  such 
censorship  is  implied  in  the  use  of  these  terms  by  the  writer, 
who  is  far  from  attempting  to  dogmatise  on  fundamental 
truths,  and  who  desires  simply  to  show  the  relationship  to 
one  another  of  admitted  facts.  Only  the  reader  (if  such 
there  be)  who  regards  the  universe  and  its  inhabitants  as 
the  sport  of  chance  or  arbitrary  caprice,  and  its  records  not 
as  HISTORY,  but  merely  as  chronicles  or  annals,  need  regard 
himself  as  out  of  sympathy  with  the  book.  «• 

Thus,  to  avoid  misconception,  the  author  will,  in  sketch- 
ing his  plan,  begin  by  abandoning  a  term  employed  in  the 
smaller  work  on  which  the  present  is  based,  and  speak  not 
of  the  "savage"  but  of  the  PRIMITIVE  stage  in  the  history 
of  institutions.  This  stage  may  be  regarded  as  the  dis- 
covery of  the  last  half-century;  and  the  discovery  marks  a 
solid  achievement  in  the  study  of  mankind.  It  is  true  that 
geologists  had,  long  ere  that  date,  made  us  familiar  with 
the  existence  of  the  man  of  the  ice-cave  and  the  riverdrift. 
But  of  this  kind  of  man,  long  since  extinct,  so  little  can, 
obviously,  be  known,  that  he  and  his  doings  form  no  part 
of  history — in  fact  we  usually  call  him  "prehistoric." 

On  the  other  hand,  the  type  of  man  who  has  been  revealed 
to  us  during  the  last  half-century,  is  far  more  rudimentary 
than  the  type  treated  as  primitive  by  Sir  Henry  Maine  and 
his  band  of  brilliant  contemporaries,  who  regarded  the 
Homeric  heroes  and  the  Romans  of  the  early  Republic  as 
the  founders  of  modern  institutions.  And,  fortunately,  we 
are  not  confined  to  speculation  upon  the  ways  of  life  of  this 
primitive  type  of  man;  though  we  may  well  confess  our-' 


PRIMITIVE   INSTITUTIONS         21 

selves  to  be  in  the  dark  with  regard  to  many  of  his 
motives  and  beliefs.  For  he  still  exists  in  considerable 
numbers  in  the  remoter  parts  of  the  earth;  and  he  has  lately 
been  made  the  subject  of  sympathetic  and  skilful  study  by 
such  observers  as  Messrs.  Spencer  and  Gillen,  who  have 
spent  long  periods  in  studying  the  aboriginals  of  Central 
Australia,1  by  Miss  Mary  Kingsley,  whose  unprejudiced  yet 
enthusiastic  researches  into  the  life  of  the  West  African 
native  are  a  noble  monument  of  a  great  career  too  early 
closed, 2  and  Sir  Alfred  Lyall,  in  his  sympathetic  studies  of 
the  beliefs  and  practices  of  the  hill-men  of  India.3  Refer- 
ences to  these  first-hand  sources  of  information  may  be 
supplemented  by  the  more  comprehensive  work  of  the 
late  Professor  E.  B.  Tylor  on  Primitive  Culture,*  and  by 
visits  to  the  stores  of  what  may  be  called  "circumstantial 
evidence,"  in  such  institutions  as  the  Pitt  Rivers  Museum 
at  Oxford. 

The  picture  which  these  observers  and  evidences  present 
to  us  is  at  first  sight  confusing;  and  we  must  be  careful 
to  remember  in  connection  with  it,  and  also  with  other  stages 
of  development,  two  important  facts,  which  are  really  one. 
The  first  is,  that  all  these  stages  comprise  communities 
which  differ  slightly,  though  not  fundamentally,  one  from 
another,  in  their  attainments.  Thus,  for  example,  Miss 
Kingsley's  West  African  natives  are,  in  some  respects 
(probably  owing  to  their  contact  with  European  traders), 
more  advanced  than  the  aboriginals  of  Australia,  who  live 
practically  in  a  state  of  isolation.  It  is  only  in  funda- 
mentals that  they  agree.  The  second  fact  is  a  consequence 
of  the  first,  namely,  that  it  is  quite  impossible  to  say  exactly 
when  stages  marked  by  such  movements  as  the  Renaissance 
and  the  Protestant  Reformation,  or  a  period  such  as  the 
"Middle  Ages,"  began  or  ended.  All  that  can  be  done  is, 

1  The  Native  Tribes  of  Central  Australia,  Macmillan,  1899. 
1  Travels  in  West  Africa,  Macmillan,  1897 ;  West  African  Stud- 
ies, Macmillan,  1899. 

'Asiatic  Studies,  Murray,  1882,  I.  ch.  iv. 
4  (4th  edition)   Murray,  1893. 


22     THE   STATE   AND    THE   NATION 

to  point  out  certain  important  facts  or  institutions  which 
appear  to  indicate  the  character  of  an  epoch  or  phase  of 
development,  and  to  attempt  to  explain  their  origin,  signifi- 
cance, and  disappearance.  Subject  to  the  limitations  im- 
posed by  these  facts,  the  picture  we  have  now  to  study  may 
fairly  be  described  as  representing  a  stage  of  social  develop- 
ment; for  it  is  marked  by  a  connection  between  its  principal 
features  which  embraces  the  life  of  its  human  material  as 
a  whole. 

The  life  of  Primitive  Man  seems,  at  first  sight,  to  be  best 
described  by  a  series  of  negatives.  His  food  supply  is, 
practically,  limited  to  the  products  of  the  earth — 'the 
fruits  of  the  wild  tree  or  bush,  the  beasts  and  birds  of  the 
forest,  and  the  fish  of  the  river  and  the  creek.  It  is  an 
achievement  when  he  learns  to  know  something  about  the 
recurrence  of  the  seasons,  and  to  lay  up  against  winter 
a  store  of  the  summer  produce.  His  clothing,  save  where, 
as  in  Lapland  or  Greenland,  the  rigours  of  the  climate 
early  compel  him  to  wear  the  skins  of  wild  animals,  is  even 
more  limited  in  scope.  It  is  doubtful  what  motive  or  com- 
bination of  motives  led  him  to  make  developments  in  his 
wardrobe.  The  Australian  evidence  suggests  that  religion 
and  vanity  had  at  least  as  much  to  do  with  it  as  modesty 
or  hygiene;  for,  though  their  ceremonial  costumes  are 
elaborate  and  impressive,  in  ordinary  life  the  aboriginals  go 
about  stark  naked.  Primitive  Man  has  few  domesticated 
animals;  the  ox,  sheep,  horse,  ass,  and  cat  are  accompani- 
ments of  a  more  advanced  stage.  The  dog,  the  companion 
of  the  chase,  is  the  first  of  such  acquisitions;  but,  perhaps, 
until  he  is  used  to  draw  sledges  or  guard  sheep,  he  can 
hardly  be  called  "domesticated."  It  is  a  singular  and  sug- 
gestive fact  that,  in  the  view  of  the  English  common  law 
as  it  stood  not  many  years  ago,  the  dog  ranked  midway 
between  wild  animals,  which  are  no  man's  property,  and 
domestic  animals,  which  are  capable  of  being  stolen,  and 
for  whose  vagaries  their  owner  is  responsible.  Needless 
to  say,  the  dwelling-places  of  Primitive  Man  are  rudi- 
mentary in  the  extreme.  A  ready-made  cave,  or  a  rude 


PRIMITIVE   INSTITUTIONS         23 

bark  hut,  marks  the  limit  of  his  achievements  in  that  direc- 
tion. There  is,  however,  little  real  evidence  that  he  ever 
roosted  in  trees;  though  the  readiness  with  which  even 
civilised  children  follow  the  pursuit  of  tree-climbing  sug- 
gests a  survival  of  primitive  instincts.  More  probably, 
Primitive  Man  used  trees  as  refuges,  or  as  lurking-places 
from  which  to  watch  for  his  prey,  rather  than  as  his  habitual 
abode. 

Of  what  may  be  called  the  technical  arts,  Primitive  Man 
was  equally  ignorant.  The  legends  and  institutions  of 
Greece  and  Rome  point  clearly  to  a  time  when  the  art  of 
fire-making  was  a  rare  and  new  achievement.  The  figure 
of  Prometheus,  the  Fire-Bringer,  is  one  of  the  most  tragic 
in  the  world's  literature.  The  Vestal  Virgins  of  Rome, 
who  guarded  the  sacred  flame  which,  at  peril  of  their  lives, 
they  were  bound  to  keep  alive,  day  and  night,  are  an 
eloquent  testimony  to  the  fear  of  losing  a  priceless  but  ill- 
understood  art;  and  many  less  picturesque,  but  equally 
significant,  survivals  point  to  a  similar  experience  among 
other  communities.  The  tools  of  Primitive  Man  are  of  the 
rudest  character.  Wood,  especially  bark,  is  early  used, 
both  for  weapons  and  tools.  It  is  hardly  possible  to  find 
communities  to  which  the  bow  and  the  spear  (the  former 
strung  with  the  intestines  of  animals)  are  totally  unknown; 
and  the  "pitchi"  of  the  Australians,  the  primitive  spade 
or  digging-basket,  is  widely  spread  among  primitive  peoples. 
But  the  limitations  of  wood,  its  lack  of  durability  and 
sharpness,  are  obvious;  and  the  use  of  stone  for  weapons 
and  tools  is  early  adopted,  except  in  countries  where  stone 
is  rare.  But  that  it  is  later  than  the  discovery  of  fire, 
seems  to  be  suggested  by  the  Australian  legends,  which 
describe  the  use  of  a  charred  stick  as  having  preceded, 
for  certain  primitive  surgical  operations,  the  application 
of  stone. 

It  is  interesting  to  discover,  that  what  we  should  regard 
as  aesthetic,  rather  than  practical,  arts,  appear  to  be  almost, 
if  not  quite,  as  primitive  as  practical  equipment.  Miss 
Kingsley's  testimony  to  the  musical  accomplishments  of 


24     THE   STATE   AND   THE  NATION 

the  West  Coast  natives,  and  the  extent  of  their  orchestra, 
is  borne  out  by  the  evidence  from  other  primitive  com- 
munities, including  the  splendid  collections  of  primitive 
musical  instruments  in  various  museums.  The  world  was 
startled  but  a  few  years  ago  by  the  discovery  of  an  un- 
deniable fossil  picture,  of  which  the  famous  White  Horse 
of  the  Berkshire  Downs  may  be  a  relative.  But  it  is  well 
known,  that  one  of  the  chief  objects  of  primitive  music 
is  to  drive  away  those  evil  spirits,  which,  as  we  shall  shortly 
note,  play  so  large  a  part  in  the  life  of  Primitive  Man;  x 
and  it  may  well  be,  that  the  art  of  drawing  or  painting 
had  an  equally  practical  object  in  the  days  in  which  writing 
was  unknown.  If  so,  the  facts  point  to  the  interesting 
conclusion,  that,  in  claiming  that  there  could  be  no  beauty 
without  utility,  at  least  in  human  art,  Ruskin  was  express- 
ing a  truth  supported  by  the  history  of  progress.  Even 
the  most  primitive  survival  of  the  decorative  arts,  viz. 
tattooing  or  painting  of  the  human  body,  had,  in  all  prob- 
ability, the  very  practical  objects  of  frightening  enemies 
and  giving  information  to  friends. 

When  we  come  to  the  positive  side  of  primitive  institu- 
tions, we  may  look  first  at  the  attempts  to  convert  the 
loose  miscellany  of  the  "pack"  or  hunting  group,  probably 
determined  by  mere  circumstances  of  neighbourhood,  into 
an  orderly  social  system.  Here  the  Australian  evidence 
is  of  the  first  importance;  and  the  debt  which  we  owe  in 
this  respect  to  Australian  observers  is  incalculable. 2 

Quite  naturally,  it  turns  upon  one  of  the  primordial  facts 
of  human  society,  viz.  sexual  intercourse.  Incredible  as 
it  may  seem  to  us,  there  are  reasons  for  believing  that 
Primitive  Man  does  not  at  first  realise  the  apparently 
obvious  cause  of  reproduction  of  the  species;  though  of 

1  The  ringing  of  church  bells  is  a  survival  of  this  practice. 

aln  addition  to  the  works  previously  alluded  to,  may  be  men- 
tioned an  earlier  book  of  great  value,  viz.  Kamilaroi  and  Kur- 
nai,  by  Rev.  Lorimer  Fison  and  A.  W.  Howitt  (Melbourne), 
1880.  Also,  as  a  study  of  Red  Indian  institutions,  L.  H.  Mor- 
gan's Ancient  Society,  Macmillan,  1877. 


PRIMITIVE   INSTITUTIONS         25 

course,  he  is  familiar  with  the  facts  of  childbirth. x  In 
other  words,  he  seems  to  have  practised  for  ages  the  act 
of  generation,  without  realising  its  physical  consequences. 
Doubtless,  as  in  the  case  of  animals,  his  sexual  relationships 
had  some  trifling  degree  of  permanence,  instigated  by  the 
primitive  feeling  of  jealousy,  or  desire  to  secure  pleasurable 
emotions  for  himself.  But  of  the  existence  of  what  may 
fairly  be  called  "sexual  promiscuity"  in  primitive  societies 
there  seems  to  be  no  reasonable  doubt.  One  of  the  strong- 
est evidences  is  the  well-known  practices  of  Pacific  com- 
munities which,  under  the  influence  of  certain  awe-inspiring 
natural  phenomena  (e.g.  the  "Aurora  Borealis"),  relapse 
into  it,  believing  the  Powers  of  Nature  to  be  offended  by  its 
disuse. 

But  a  still  more  indisputable  fact  is  the  discovery,  even 
by  primitive  communities,  of  the  evils  of  intermarriage 
between  near  relations;  and  the  steps  taken  to  combat  them 
appear  to  give  rise  to  the  earliest  efforts  towards  social 
organisation.  These  steps  result  in  what  is  technically 
known  as  the  "classificatory  system"  (or  systems)  of  re- 
lationship, which  are  in  full  working  order  among  the 
Australian  aboriginals  at  the  present  day,  and  of  which 
there  are  clear  traces  in  Red  Indian  society.  Broadly 
speaking,  they  consist  in  grouping  the  community  into 
smaller  units,  sexual  relationships  within  which  are  strictly 
forbidden,  under  the  severest  penalties.  For  purposes  of 
easy  recognition,  these  units  are  distinguished  by  the  name 
of  some  familiar  natural  object,  or  totem;  and  it  is  im- 
possible to  avoid  connecting  this  practice  with  the  primitive 
belief  (for  which  there  is  considerable  evidence)  that  the 
proximity  of  such  objects  at  the  time  of  a  child's  birth 
has  a  powerful  influence  on  its  destiny,  or  may  even  be  the 

1  After  all,  this  apparently  incredible  state  of  ignorance  is  only 
a  survival  of  a  strictly  "prehistoric"  state  of  things,  when  there 
was  no  differentiation  of  sex.  Sexual  relationship  is  not  essen- 
tial to  reproduction,  but  only  to  improved  or  more  rapid  re- 
production. Prehistoric  memory  may  be  responsible  for  the 
widely  spread  legends  of  "virgin-births." 


26     THE   STATE   AND    THE   NATION 

cause  of  its  birth.  Thus  we  can  see  how  the  fact  that  in- 
dividuals belonged  to  the  same  totem  would  begin  to  build 
up  the  idea  of  kinship,  or  relationship  by  blood.  But  the 
primary  object  of  the  totem  group  is,  apparently,  to  pre- 
vent intermarriage  between  near  relatives.  "Snake  must 
not  marry  snake"  is  one  of  the  few  moral  precepts  of  the 
Australian  aboriginal. 

But  the  converse  of  this  and  similar  maxims  is,  to  our 
minds,  really  startling.  Apparently  (for  we  must  still 
speak  with  some  reserve  of  the  evidence)  the  negative  pre- 
cept, "Snake  must  not  marry  snake,"  is  balanced  by  the 
rule,  that  every  male  of  a  class  in  one  totem  group  is  the 
husband,  actual  or  potential,  of  every  woman  of  the  cor- 
responding class  in  another  totem,  and  vice  versa.  Thus, 
if  the  Snake  totem  has  the  Emu  totem  as  its  marriage 
group,  every  male  Snake  of  a  given  class  may,  in  theory, 
have  marital  relations  with  every  Emu  woman  of  the  cor- 
responding class,  and  every  female  of  that  class  with  every 
Snake  man  of  the  corresponding  class.  We  say  "class" 
advisedly;  for,  though  it  can  hardly  be  doubted  that  the 
object  of  this  restriction  is  again  to  prevent  the  marriage, 
of  direct  relatives,  yet,  in  fact,  it  is  almost  impossible,  in 
such  a  system,  to  be  at  all  sure  of  paternity,  and  the  group- 
ing into  classes  within  the  totem  appears  to  be  done,  in  a 
somewhat  arbitrary  way,  by  the  periodical  gatherings  for 
religious  rites  which  are  such  a  striking  and  picturesque 
feature  of  aboriginal  life  in  Australia. 

Even  with  this  limitation,  however,  the  marital  possi- 
bilities open  to  the  Australian  aboriginal  are  extensive; 
for,  as  members  of  the  same  totem  group  are  often  scattered 
over  vast  distances,  and  are  also,  in  the  more  powerful 
totems,  very  numerous,  an  Australian  woman  may,  as  one 
observer  puts  it,  be  (potentially)  "married  to  several 
hundred  miles  of  husbands."  On  the  other  hand,  there  is, 
in  theory  at  least,  no  freedom  of  choice ;  so  that,  as  the  same 
observer  also  says,  marriage  is,  among  the  Australian 
aboriginals,  "a  natural  state  into  which  both  parties  are 
born."  And  the  corresponding  relationships  are  equally 


PRIMITIVE   INSTITUTIONS         27 

limited  in  range  and  extensive  in  number.  For  if  a  man  is 
the  potential  husband  of  all  the  women  of  the  corresponding 
class  in  his  totem  of  marriage,  all  their  children  are  his 
children,  all  the  members  of  his  mother's  totem  in  the  classes 
senior  to  hers  are  his  ancestors,  all  those  in  her  class  his 
uncles  and  aunts,  all  those  in  the  class  below  her  his 
brothers  and  sisters,  and  so  on.  For  it  is  needless  to  say 
that,  in  such  a  state  of  things  as  we  have  described,  descent 
is  traced  through  the  mother,  not  through  the  father;  the 
rule  of  "mother-right"  being  universal  in  primitive  com- 
munities. As  another  writer  pointedly  puts  it:  motherhood 
is,  in  such  circumstances,  a  fact,  paternity  only  an  opinion. 
It  is  a  pity,  however,  to  describe  this  condition  by  such  a 
term  as  "matriarchate";  for  that  suggests  a  state  of  society 
in  which  women,  as  such,  exercise  authority,  which  is 
certainly  not  the  case  among  the  Australian  aboriginals, 
or,  indeed,  in  most  primitive  communities,  though,  occa- 
sionally, instances  are  to  be  found  of  individual  women 
exercising  great  power. 1 

On  the  hotly  debated  question,  whether  primitive  society 
is  more  '  'communistic"  than  modern,  it  is  necessary  to 
speak  with  great  caution.  As  usual,  in  these  great  contro- 
versies, it  is  essential,  if  the  truth  is  to  be  reached,  to  be 
clear  as  to  terms.  And  so,  if  we  are  asked  whether  primitive 
men  are  "communistic,"  we  must  ask:  "Communistic  in 
what?"  We  have  seen  that,  at  least  to  an  extent  which 
seems  to  us  to  be  startling,  they  are  communistic  in  sexual 
relationships.  But  if  we  use  the  term  in  its  more  common 
application  to  property,  in  the  ordinary  sense  of  the  word, 
i.e.  objects  of  value,  we  are  at  once  met  by  the  counter- 
question:  "In  what  property?"  Some  writers  and  speakers 
appear  to  assume  the  existence,  in  the  primitive  jungle  or 
desert,  of  the  contents  of  a  Bond  Street  or  Rue  de  la  Paix, 
and  to  speculate  at  length  upon  their  ownership.  But  we 

1  This  is  not  to  deny  that,  under  "mother-right"  institutions, 
women  may  have  more  independence  than  in  the  succeeding  or 
patriarchal  stage.  Miss  Kingsley,  in  fact,  suggests  that  this  is  so 
among  the  West  African  natives. 


28     THE    STATE   AND   THE   NATION 

must  remember  that,  as  we  have  already  seen,  the  material 
possessions  of  Primitive  Man  are  few.  He  has  neither  cattle 
nor  sheep,  corn,  wine,  or  oil,  house  or  furniture,  nothing 
made  of  metal.  (Think  what  a  gap  that  makes  in  the  pic- 
ture.) Land  he  can  have  for  the  asking;  but,  of  what  use 
is  it  to  him?  He  leads,  literally,  a  "hand-to-mouth"  exist- 
ence. It  is  highly  probable,  that  such  game  as  is  captured 
by  an  organised  hunt  is  shared  in  some  way  among  the 
hunting  group;  for  it  would  be  difficult,  if  not  impossible, 
to  get  such  a  group  together  except  on  terms  of  sharing  out. 
But  there  is  little,  if  any,  evidence  to  show  the  identity  of 
the  hunting  group  with  the  social  or  totem  unit;  though 
it  may  well  be,  that  the  individual  members  of  such  a  unit 
recognise  a  certain  obligation  on  them  to  allot  a  share  of 
their  individual  booty  to  the  weaker  members  of  the  unit, 
the  old  people,  child-rearing  women,  and  children.  The 
other  really  valuable  possessions  of  Primitive  Man,  his 
weapons  and  scanty  adornments,  could  hardly,  in  the  nature 
of  things,  be  shared  with  others.  They  were  probably 
acquired  by  one  or  other  of  the  two  oldest  titles  in  the 
world:  production  and  capture. 

Nevertheless,  where  circumstances  are  favourable  to  the 
early  appearance  of  objects  of  value  in  primitive  com- 
munities, as,  for  instance,  amongst  the  natives  of  the  West 
African  coast,  who  have  been  visited  for  centuries  by 
European  traders,  there  is  some  ground  for  saying  that 
arrangements  which  may,  in  a  modified  sense,  be  described 
as  "communistic,"  are  adopted.  Thus,  Miss  Kingsley  re- 
lates that  certain  groups,  or  "Houses,"  are  regarded  as 
owning  certain  objects  of  value  in  common;  though  the 
control  and  disposal  of  them  belong  (within  limits)  to  the 
Head  or  Chief  of  the  House.1  Unfortunately,  Miss  Kings- 
ley's  works  do  not  enter  at  any  length  upon  the  nature  or 
composition  of  these  "House"  groups;  and  we  are  left  to 

1  The  fact  that  the  office  of  this  person  is  described  as  the 
"Stool"  suggests  the  origin  of  the  group.  The  stool,  in  the  prac- 
tice of  West  Africa,  is  the  primitive  child-bed  or  obstetrical  ap- 
paratus. 


PRIMITIVE   INSTITUTIONS         29 

conjecture  with  regard  to  their  origin.  But  it  does  seem 
to  be  clear,  that  most  of  them  have  what  may  fairly  be 
termed  "capital,"  i.e.  wealth  used  for  purposes  of  traffic  and 
gain,  usually  in  dealings  with  European  traders.  But  the 
same  account  shows  that  the  House  Chief  and  his  slaves 
(another  anachronism  introduced  into  primitive  society  by 
the  alien  trader  element)  regard  gains  acquired  with  House 
capital,  beyond  a  certain  limit,  as  their  private  perquisites, 
and  grow  rich  thereby. 1  The  evidence  must,  therefore,  be 
regarded  as  adding  but  little  weight  to  the  belief  in  primitive 
communism. 

Before  we  conclude  this  sketch  of  primitive  institutions, 
a  few  words,  and  those  somewhat  hesitating,  must  be  said 
concerning  that  powerful,  but  mysterious  influence,  Primi- 
tive Religion. 

The  most  obvious  and  dominant  fact  in  this  connection 
is,  that  Primitive  Man,  whatever  else  he  may  be,  is  not 
a  materialist.  On  the  contrary,  his  universe  is  peopled 
by  unseen  spirits,  whose  influence  upon  his  fortunes  he 
believes  to  be  direct  and  powerful.  Most  of  them  are, 
unhappily,  evil  spirits,  whose  influence  is  malevolent.  Need- 
less to  say,  he  attributes  to  them  motives  and  intentions 
with  which  he  is  familiar  in  his  intercourse  with  his  fellow- 
men;  but,  if  that  fact  should  cause  us  to  form  a  somewhat 
gloomy  picture  of  primitive  society,  we  must  remember 
that  gratitude  is  a  somewhat  late  development  in  human 
feelings.  The  absence  of  gratitude  among  primitive  peoples 
has,  in  fact,  often  been  remarked ;  and  the  probable  explana- 
tion is,  that,  like  very  young  children,  they  have  no  con- 
ception of  altruistic  motives,  and  assume,  if  they  consider 
the  matter  at  all,  that  their  benefactor  is  prompted  merely 
by  caprice,  or  some  self-interested  design. 

Another  prominent  fact  in  primitive  religion  is,  that 
Primitive  Man  is  apt  to  locate  the  numerous  spirits  which, 
as  he  believes,  are  everywhere  around  him,  in  certain 

1  See  the  account,  in  West  African  Studies,  pp.  428-9,  where 
students  of  Roman  Law  will  find  a  curious  anticipation  (in  order 
of  development)  of  the  well-known  Roman  doctrine  of  peculium. 


30     THE   STATE   AND    THE   NATION 

material  objects,  such  as  stones,  trees,  and  animals.  The 
reason  of  this,  at  least,  is  not  very  difficult  to  guess.  It  is 
due  to  that  overmastering  tendency  in  the  working  of  the 
mind  which  we  call  the  "association  of  ideas."  This  ten- 
dency, which  is  to  be  found  equally,  if  not  even  more  highly, 
developed  in  animals  than  in  men,  has  its  value,  as  a 
warning  and  a  safeguard.  Thus,  a  man  who  has  seen 
his  fellow  drowned,  as  the  result  of  an  attempt  to  walk 
along  a  floating  log,  may  well  be  chary  of  attempting  to 
use  floating  logs  himself;  though  he  may  not  understand 
the  reason  for  his  companion's  fate.  But,  of  course,  float- 
ing logs  are,  in  themselves,  harmless,  and,  indeed,  useful, 
if  properly  used.  And  so  the  failure  to  distinguish  between 
good  and  bad  uses,  i.e.  to  perform  that  mental  process 
which  we  call  "analysis,"  may  deprive  him  of  great  advan- 
tages. Miss  Kingsley1  boldly  attributes  this  tendency, 
which  is  highly  developed  in  her  West  African  natives,  to 
the  logical  qualities  of  the  African  mind;  and  the  claim, 
though  apparently  bold,  is  not  so  improbable  as  it  sounds. 
Starting  from  certain  accepted  premises,  the  mind  of  the 
West  African  arrives  at  fairly  reasonable  conclusions. 

Be  the  cause  what  it  may,  this  tendency  to  embody  un- 
seen spirits  in  concrete  objects,  or,  as  it  is  generally  called, 
FETISHISM,  is  apt  to  give  to  primitive  religion,  or  ANIMISM, 
a  materialistic  appearance  which,  as  previously  urged,  it 
does  not  really  deserve.  It  is,  to  all  seeming,  the  earliest 
form  of  that  most  beautiful  and  poetic  of  more  modern 
religions,  Pantheism,  or  the  belief  in  the  immanence  of  a 
Divine  Power  in  the  works  of  Nature. 

Apparently,  the  primitive  mind  is  (as  might  have  been 
expected)  much  like  the  animal  mind.  It  causes  its  owner 
to  go  about  "smelling  to"  objects,  and  deciding  whether 
or  not  they  are  to  be  avoided;  much  as  a  kitten,  newly 
introduced  into  a  roomful  of  furniture,  will  occupy  itself 
for  the  first  few  days  in  sniffing  over  each  article,  and,  ap- 
parently, deciding  its  character.  From  the  practical  point 
of  view,  this  rudimentary  system  of  experiment  is  unsatis- 
1  West  African  Studies,  p.  124. 


PRIMITIVE   INSTITUTIONS         31 

factory;  because  the  ideas  of  the  experimenter  are  limited, 
and  determined  by  what  would  appear  to  us  to  be  irrelevant 
circumstances.  Thus,  the  fact  that  a  man  is  killed  by  the 
casual  fall  of  a  tree  when  walking  on  a  certain  path,  will 
lead  to  the  conclusion  that  the  Tree  Spirit  is  annoyed  by 
the  use  of  the  path.  And  so  the  path  becomes  "taboo,"  i.e. 
forbidden;  and  any  one  who  uses  it  is  "taboo,"  or  outcast. 
Thus  arises  the  most  primitive  form  of  LAW,  with  its  most 
primitive  "sanction"  or  penalty.  Certain  rules  thus  arbi- 
trarily laid  down,  nearly  all  negative  in  character  ("Thou 
shalt  not"),  form  the  code  of  primitive  law;  and  it  is  inter- 
esting to  note,  that  its  chief  sanction,  or  penalty,  instead 
of  becoming  antiquated  and  unsuitable  with  social  develop- 
ment, remains,  in  spite  of  modern  substitutes,  at  once  the 
most  effective  and  the  least  revolting  of  punishments.  In 
fact,  the  more  intensely  the  strands  of  human  co-operation 
are  interwoven,  and  the  more  widely  they  are  spread,  the 
more  helpless  the  community  or  the  individual  excluded 
from  their  protecting  shield.  Perhaps  it  is  more  to  the 
present  point  to  note  that,  even  in  primitive  life,  the  idea 
that  the  offender  against  the  code  is  a  danger  to  the  com- 
munity, is  developed  by  the  notion  of  the  CURSE,  i.e.  the 
belief  that  the  wrath  of  the  offended  spirit  will  visit,  not 
only  the  actual  offender  (who  is,  possibly,  in  hiding),  but 
his  community  also,  unless  he  is  found  and  given  up;  for 
this  leads  to  the  appearance  of  one  of  the  earliest,  if  not 
quite  the  earliest,  of  legal  proceedings,  viz.  the  expulsion 
and,  if  necessary,  destruction  of  the  offender.  The  story 
of  Achan,  as  related  in  the  Hebrew  Scriptures, *  is  a  vivid 
illustration  of  this  process,  and  should  be  carefully  studied 
for  the  light  which  it  throws  upon  primitive  jurisprudence. 
One  other  result  of  the  primitive  attitude  of  mind  which 
we  have  been  trying  to  describe,  must  be  noted.  Quite 
naturally,  human  nature  being  what  it  is,  Primitive  Man 
does  not  spare  efforts  to  avert  the  dangers  by  which  he 
believes  himself  threatened  by  the  powerful  spirits  who 
surround  him.  Apart  from  the  well-known  practice  of 
1  Joshua,  ch.  vii. 


32     THE   STATE   AND   THE   NATION 

observing  OMENS,  i.e.  the  appearance  of  objects  believed 
to  be  pregnant  with  danger,  or  (later)  with  prosperity, *  and 
guiding  his  conduct  accordingly,  the  primitive  believer  has 
a  profound  conviction  of  the  value  of  a  judicious  bribe 
offered  to  a  powerful  spirit,  usually  in  the  shape  of  a  vic- 
tim on  whom  he  (the  spirit)  may  satisfy  his  desire  for 
vengeance.  This  deep-seated  conviction  is  the  source  of 
that  dark  page  in  the  history  of  mankind,  the  record  of 
vicarious  suffering,  the  notion  of  the  SACRIFICE.  It  is, 
alas!  to  be  feared,  that  observation  of  his  fellow-men,  only 
too  correct,  is  at  the  root  of  this  belief  of  Primitive  Man. 
Primitive  Man,  out  for  blood,  is  not  particular  as  to  the 
identity  of  his  victim.  If  he  cannot  get  the  individual 
he  wants,  some  one  else  will  do — if  possible,  related  to  the 
victim  sought.  It  is  a  modification  when  the  blood  of 
animals  is  substituted  for  that  of  human  beings;  and,  in 
its  later  stages,  offerings  of  fruit  and  flowers  develop  into 
a  really  beautiful  symbolism,  in  which  primitive  religion 
is  seen  at  its  best. 2 

But  this  gradually  unfolding  system  of  belief  naturally 
produces  a  class  of  skilled  practitioners  who  thrive  upon 
it.  These  are  the  soothsayers,  magicians,  medicine-men 
(biraark,  as  the  Australians  call  them),  who  profess  to  deal 
with  the  unseen  spirits.  These  persons  are  not,  necessarily, 
either  conscious  hypocrites,  or  dealers  in  iniquity.  Much 
of  their  action  is  intended  to  be  benevolent.  In  the  more 
advanced  stages  of  primitive  life,  they  tend  to  separate  into 
various  classes.  Miss  Kingsley,  for  example,  regards  the 
village  apothecary,  who  lives  openly  among  his  patients, 

1  The  later  form  of  this  practice,  viz.  the  examination  of  the 
entrails  of  birds  and  animals,  shows  a  considerable  scientific  ad- 
vance; for  it  is  believed  to  have  originated  in  the  practice  of 
communities  trekking  into  new  country,  and  testing  the  qualities 
of  new  flora  by  causing  their  animals  to  eat  them.  ("Try  it  on 
the  dog.") 

alt  is,  perhaps,  irrelevant,  but  interesting,  to  note,  that  the 
Imperial  crown  may  have  originated  in  the  basket  of  fruits  cere- 
monially carried  at  the  patriarchal  harvest.  (See  the  figures  in 
the  Cluny  Museum  at  Paris.) 


PRIMITIVE   INSTITUTIONS         33 

and  treats  their  various  minor  diseases  with  simple  herbal 
remedies,  as  a  harmless,  if  not  actually  useful  person; 
though,  in  a  humorous  passage, x  she  suggests  the  more 
dangerous  possibilities  which  attend  his  art.  But  the 
higher  practitioner,  who  combines  the  functions  of  priest, 
lawyer,  and  physician,  and  surrounds  himself  with  mystery, 
is  also  by  no  means  always  a  mischief-maker;  and  Sir 
Alfred  Lyall 2  clearly  distinguishes  between  "black"  and 
"white'  magic.  The  practitioner  of  the  former  art  is  the 
later  wizard  or  witch;  and  the  intense  and  long-surviving 
hatred  with  which  he  and  she  were  regarded,  even  in 
Western  Europe  but  a  century  ago,  has,  probably,  a  dark 
background  of  history  to  excuse  it.  As  an  instance  of  that 
interlocking  of  institutions  which  justifies  us  in  treating 
progress  as  a  series  of  stages,  we  may  refer  to  another 
humorous  passage  in  Miss  Kingsley's  great  work,3  which 
describes  how  goods  left  for  sale  in  the  primitive  markets 
of  the  Guinea  Coast  are  each  protected  by  the  Ju-ju,  or 
special  idol,  of  the  proprietor,  which  thus  serves  to  fortify 
the  growth  and  sanctity  of  property.  The  market  itself  is 
a  deeply  interesting  institution,  which  shows  us  the  early 
stages  of  that  widening  intercourse  between  different  and 
highly  suspicious  communities,  which  does  so  much  to 
foster  progress.  But  its  development  at  this  stage  is  rudi- 
mentary and  exceptional;  and  a  fuller  account  of  it  must 
be  reserved  to  a  future  chapter. 

1  West   African    Studies,    pp.    181-2.      Invitations    to    dinner, 
amongst  native  practitioners,  are,  it  appears,  rarely  accepted. 

2  Asiatic  Studies,  Murray,  1882,  I.  ch.  iv. 
*  West  African  Studies,  pp.  248-9. 


CHAPTER  III 

KINSHIP  THROUGH  MALES 

WE  now  come  to  that  well-marked  stage  in  the  develop- 
ment of  society  which  to  Sir  Henry  Maine  and  his  con- 
temporaries appeared  to  be  the  oldest  stage,  but  which,  as 
we  have  seen,  was  preceded  by  at  least  one  stage  of  a  far 
more  rudimentary  type.  The  striking  feature  of  this  later 
stage,  from  the  standpoint  of  social  organisation,  is  the 
dominance  of  the  House  Father,  that  is,  of  the  oldest 
living  male  ancestor  of  a  group  of  individuals  related 
through  males.  Such  a  group,  much  more  a  society  based 
on  such  groups,  was  impossible  under  a  system  of  sexual 
relationships  such  as  that  described  in  the  last  preceding 
chapter.  Such  bonds  of  social  cohesion  as  then  existed 
were  based  either  on  the  apparently  arbitrary  allotment 
into  totems  and  sub-totems  or  classes,  and  the  physical 
fact,  probably  of  much  slighter  importance  then  than  now, 
of  descent  from  the  same  mother  or  female  ancestor.  This 
latter  fact,  as  we  have  said,  apparently  gave  to  the  female 
ancestor  no  social  power.  On  the  other  hand,  the  note  of 
patriarchal  society  is  the  dominance  of  the  male.  What 
was  the  cause  of  the  transition? 

It  is  as  certain  as  any  assertion  not  absolutely  verified 
by  observation  can  be,  that  it  was  the  domestication  of 
wild  animals  by  Man  which  led  to  the  change.  We  know, 
for  a  fact,  that  all  domestic  animals — the  horse,  ox,  sheep, 
goat,  ass,  pig,  camel — have  their  "opposite  numbers"  in 
the  desert  and  the  jungle.  In  some  few  instances,  it  is 
possible  that  these  wild  animals  may  be  the  offspring  of 
those  which  have  escaped  from  domestic  captivity;  this  view 
has  been  maintained,  for  example,  with  some  plausibility, 

37 


38     THE   STATE   AND   THE   NATION 

in  the  case  of  the  Mexican  wild  horse,  or  mustang,  which 
is  said  to  be  descended  from  the  Spanish  breed  imported 
at  the  time  of  the  conquest.  But  it  seems  quite  impos- 
sible to  argue,  that  the  jungle  and  the  desert  were  originally 
peopled  by  "escapees";  for  such  a  suggestion  would  raise 
more  difficulties  than  it  would  solve.  Where  then  did  Man 
get  the  domestic  animals  which  escaped?  He  could  not 
make  them.  The  theory  of  a  special  creation  of  wild  and 
domestic  animals  is  opposed  to  all  that  is  known  of  un- 
conscious Nature.  The  inference  is  irresistible:  that,  cir- 
cumstances favouring,  some  communities  discovered  the  art 
which  was  to  revolutionise  society,  viz.  the  art  of  taming 
wild  animals.  This  is,  of  course,  not  to  say  that  all  com- 
munities learnt  that  art  by  what  is  ordinarily  called  "dis- 
covery," i.e.  without  conscious  imitation  of  human  example. 
Doubtless  many  communities  acquired  it  by  transmission. 
But  there  must  have  been  a  beginning. 

Unfortunately,  in  this  as  in  so  many  other  matters  of 
profound  importance  in  history,  the  evidence  is  slight  and 
inferential.  We  know  that  the  great  discovery  was  made; 
but  as  to  who  made  it,  or  how,  we  know  very  little.  Never- 
theless, we  can  gather  hints  from  certain  observations  of 
travellers  among  pastoral  peoples,  which,  combined  with 
our  knowledge  of  more  rudimentary  stages,  will  at  least 
suggest  probabilities. 

We  begin,  therefore,  with  the  unquestionable  fact,  that, 
in  spite  of  the  immense  increase  in  the  knowledge  of  what 
used  to  be  called  "Natural  History,"  during  the  last  hundred 
years,  an  infinitesimal  addition  to  the  list  of  domesticated 
animals  has  been  the  result.  Nearly  all,  if  not  quite  all,  of 
the  world's  domesticated  animals  were  known,  as  such, 
ages  before  modern  scientific  investigation  began.  In  other 
words,  domestication  of  wild  animals  was  the  work,  not  of 
civilised,  but  of  primitive  men;  and,  so  thoroughly  did  they 
do  it,  that  they  seem  to  have  left  little  for  their  civilised 
successors  to  do. 

Again,  there  is  no  evidence  for  the  view,  that  the  origin 
of  the  achievement  was  the  mental  superiority  of  special 


KINSHIP   THROUGH   MALES         39 

communities  or  individuals.  Legends  to  that  effect,  no 
doubt,  prevailed  after  the  event,  due  to  a  cause  to  which  we 
shall  hereafter  refer.  But  there  is  no  reason  to  assume,  for 
example,  that  the  Eskimo,  who  have  no  oxen  or  horses,  are 
inferior  in  mental  aptitude  to  the  Tartars,  with  whom  they 
are  abundant.  The  more  obvious  reason  is,  that  the  climatic 
conditions  of  the  Eskimo  country  offer  but  a  scanty  supply 
of  raw  materials  upon  which  the  Eskimo  can  draw  for  his 
experiments  in  domestication.  Such  theories  of  "racial 
superiority"  are  as  baseless  as  they  are  dangerous. 

In  fact,  the  evidence  appears  to  show  that,  as  might  have 
been  expected,  nearly  all  domesticated  animals  originated 
in  those  parts  of  the  tropical  world  in  which  abundant 
vegetation  produced  food  for  a  very  large  number  of 
animals  capable  of  domestication.  Broadly  speaking,  no 
carnivorous  animals  have  been  domesticated;  for  the  cat 
and  the  dog  are  hardly  exceptions,  the  latter  being,  as  we 
have  said,  more  a  companion  hunter  than  a  domestic  serv- 
ant,1 while  the  former  is  more  of  a  plaything  than  a  utility. 
But  the  very  existence  of  the  cat  as  part  of  the  intimate  life 
of  man,  though  it  may  be  regarded  as  a  "sport,"  or  excep- 
tion, does  point  a  suggestion  as  to  the  origin  of  domestica- 
tion, which,  as  it  happens,  is  confirmed  by  actual  evidence. 

One  of  the  strongest  characteristics  of  Primitive  Man  is 
his  want  of  foresight.  Hardly,  as  we  have  said,  does  he 
realise  the  possibility  of  storing  up  an  occasional  super- 
fluity to  meet  the  needs  of  the  future  "rainy  day."  A 
lucky  round-up  of  game  is  followed  by  an  orgy  of  feasting 
and  extravagance.  Nevertheless,  there  have,  probably, 
always  been  limits  to  the  capacity  of  the  human  stomach; 
and  there  came,  therefore,  on  occasions  of  unusual  plenty, 
a  time  when  the  most  rapacious  appetite  had,  regretfully, 
to  call  a  halt.  If  the  superfluous  game  had  been  killed,  as 
would  most  likely  have  been  the  case  with  all  fierce  carnivor- 

1  The  writer  does  not,  of  course,  forget  the  sledge-dogs  of  the 
Eskimo,  or  the  cart-dogs  of  the  Belgians,  or  the  sheep-dogs  of 
many  lands.  But  these  are,  comparatively  speaking,  of  minor 
importance. 


40     THE   STATE   AND   THE   NATION 

ous  animals,  there  would,  of  course,  be  nothing  for  it  but 
waste,  or,  at  best,  some  primitive  method  of  storage,  such  as 
"biltong"  or  "pemmican."  But  if  the  game  had  been  cap- 
tured alive,  and  were  of  a  peaceful  or  timid  disposition,  it 
would  simply  be  retained  in  captivity,  being  allowed  to 
browse  in  a  rough  compound,  till  required  for  the  next 
meal. 

Now  there  is  nothing  far-fetched  in  the  hypothesis  that, 
in  such  circumstances,  a  feeling  of  affection  would  grow  up 
between  the  captives  and  their  captors.  The  basis  would 
already  be  there,  in  the  association  of  the  captives,  in  the 
minds  of  the  captors,  with  the  pleasurable  sensation  of  the 
gratification  of  hunger.  An  affection  of  that  kind  is,  doubt- 
less, in  its  primitive  shape,  incompatible  with  the  survival 
of  the  affection,  otherwise  than  in  the  form  of  regret.  But 
assume  that  a  steady  maintenance  of  the  food  supply  per- 
mitted the  continued  survival  of  the  captive  until  the 
primitive  form  of  the  affection  had  modified  itself  into 
something  less  grossly  material.  Would  there  not  grow  up 
between  captor  and  captive  a  relationship  most  favourable 
to  the  establishment  of  domestic  relations?  It  is  precisely 
this  stage  in  domestication,  when  the  captive  has  become  the 
"pet,"  or  plaything,  of  his  captor,  that  the  late  Sir  Francis 
Galton  shows  us  in  his  Narrative  of  an  Explorer  in  Tropical 
South  Africa;1  and  there  is  nothing  in  the  least  improbable 
in  it.  It  is  the  social  nature  of  Primitive  Man  extending 
its  influence  to  beings  which  are,  after  all,  not  so  very 
different  from  him  in  intelligence,  whose  habits  he  has 
studied  for  the  most  practical  of  reasons,  and  with  whom  he 
therefore  feels  himself  in  sympathy.  The  numerous  Beast- 
Legends  of  the  more  contemplative  peoples  are  another  sug- 
gestive contribution  to  the  problem.  And  a  third  is  the 

1  Murray,  1853.  p.  138.  Sir  Francis  suggests  further,  that  the 
choice  of  the  more  beautiful  of  the  superfluous  captives  would 
lead,  by  a  process  of  natural  selection,  to  the  improvement  of 
the  breed.  This  view  appears  to  the  writer  to  be  premature.  The 
hungry  hunter  would  naturally  slay  his  finest  captives  at  once 
for  food.  Artistic  considerations  would  come  at  a  later  stage  of 
development 


KINSHIP   THROUGH   MALES         41 

well-known  tendency  of  children,  who  exhibit  many  of  the 
instincts  of  primitive  mankind,  to  make  companions,  or 
"pets,"  of  all  kinds  of  animals. 

Suppose  another  highly  probable  event,  viz.  the  drop- 
ping of  young  by  captive  animals  of  the  female  persuasion. 
Is  it  conceivable  that  the  lesson  of  such  importance  and 
obviousness  would  always  be  overlooked?  A  group  of  a 
dozen  captive  buffalo  or  wild  sheep  might  be  doubled  in  a 
single  night,  without  a  stroke  of  labour  by  their  captors. 
The  notion  of  PROFIT,  i.e.  the  gain  to  be  derived  from  the 
preservation,  as  contrasted  with  the  consumption,  of  ac- 
quired objects,  with  all  the  immense  possibilities  involved 
in  such  a  notion,  would  gradually  begin  to  dawn  on  the 
consciousness  of  Primitive  Man.  It  is  remarkable,  that 
the  two  familiar  words  which,  in  our  language,  embody  this 
conception — viz.  "capital"  and  "profit" — should  be  seem- 
ingly derived  from  the  practice  of  stock-breeding. x  The 
inference  we  have  suggested  is  almost  irresistible. 

But  now  arises  another  consideration.  Increased  _wealth 
means  increased  cupidity — an  instinct  intensified  by  the 
feeling  of  affection  to  which  we  have  previously  alluded. 
In  some  way  or  another,  we  do  not  know  how,  the  promiscu- 
ous ownership  of  the  capturing  group  becomes  converted 
into  the  family  ownership  of  the  pastoralist.  Of  course 
there  must  have  been  always  a  good  deal  of  individual 
trapping,  as  distinct  from  the  "drives"  conducted  by 
hunting  groups;  and  it  may  be,  that  the  stock  of  the 
primitive  pastoralist  came  from  these  individual  captures. 
In  time  to  come,  anthropology  may  tell  us  more  of  this  im- 
portant step  in  the  evolution  of  property.  All  that  we  can 
at  present  say  is,  that  the  typical  patriarch,  as  we  know 
him  in  the  Hebrew  Scriptures  and  elsewhere,  is  an  in- 
dividualist to  the  backbone,  leading  his  flocks  and  herds 
in  search  of  pasture  and  sweet  water,  as  his  skill  or  fancy 
urges  him. 

This  practice  would  of  itself  lead  to  the  segregation  of 

1  "Capital"  =  "heads"  (capita)  of  oxen  and  sheep — "cattle," 
as  we  say.  "Profits"  =  "offspring"  (proficiscor). 


42     THE   STATE   AND    THE   NATION 

the  primitive  totem  group  or  hunting  pack  (p.  24)  into 
smaller  units,  each  tending  to  become,  as  pastoral  knowl- 
edge increased,  larger  and  larger,  by  the  accumulation  of 
flocks  and  herds.  For,  as  the  numbers  of  these  grew,  their 
proprietor  would,  naturally,  require  the  assistance  of  sub- 
ordinates, to  perform  the  duties  of  herdsmen,  watchers, 
shepherds,  spinners  of  wool,  milkers,  and  the  like.  The 
latter  classes  of  duties  co-ild  easily  be  performed  by  women; 
and  it  is  to  this  fact,  almost  without  doubt,  that  we  owe  the 
accumulation  of  wives  by  the  pastoralist.  And  by  "wives" 
we  mean  women  exclusively  devoted  to  the  interests  of 
their  husbands,  not,  as  in  the  earlier  stage,  women  having 
merely  occasional  or  temporary  sexual  relations  with  a 
class  of  males  in  a  totem  group.  Thus  we  approach  a  step 
towards  the  modern  conception  of  marriage  as  a  permanent 
relationship  between  man  and  woman;  but  not,  be  it  ob- 
served, between  one  man  and  one  woman.  For  the  typical 
marriage  of  the  Patriarchal  Age  is  not  "monogamous"  but 
"polygamous" — i.e.  the  man  is  the  husband  of  several  wives, 
whose  children  are  emphatically  his  offspring,  and  who 
remain  under  his  control,  being  absorbed  into  the  patri- 
archal group  as  his  servants. 

Leaving,  for  the  present,  the  subject  of  the  influence  of 
patriarchal  conditions  on  the  development  of  the  family 
group,  which  was  deep  and  lasting,  we  may  note  that  the 
pursuit  of  pastoral  industry  also  led  to  the  appearance  of 
the  institution  of  SLAVERY.  The  desire  to  exploit  human 
labour  soon  made  it  evident  to  the  ruler  of  flocks  and  herds, 
that  it  was  more  profitable  to  preserve  the  lives  of  his  human 
captives  than  to  dispose  of  them  by  the  primitive  methods 
of  cannibalism,  of  the  widespread  existence  of  which,  in 
earlier  days,  there  is,  unfortunately,  only  too  good  evidence. 
We  need  not  suppose  that  it  was  a  universal  practice;  but, 
where  the  food  supply  was  scanty,  it  was  undoubtedly  re- 
sorted to,  and,  revolting  as  it  seems  to  modern  ideas,  there 
is  nothing  inherently  improbable  in  it.  Even  so  intelligent 
and  progressive  a  people  as  the  Maoris  of  New  Zealand 
were,  in  comparatively  recent  times,  unable  to  resist,  on 


KINSHIP   THROUGH   MALES         43 

certain  occasions,  a  revival  of  the  taste  for  "long  pig," 
which,  as  an  habitual  indulgence,  they  had  abandoned;  and 
the  accounts  from  other  and  more  primitive  communities, 
all  over  the  world,  point  to  the  conclusion  that  it  was  once 
quite  a  popular  practice  to  dispose  of  captives  by  eating 
them.  In  other  cases,  captives  were,  in  all  probability, 
either  killed  at  sight,  or  reserved  as  sacrificial  offerings  to 
those  powerful  spirits  which,  as  we  have  seen,  play  so  large 
a  part  in  the  religion  of  Primitive  Man.  But  one  excuse 
may  fairly  be  quoted  for  what  appears  to  us  to  be  the  re- 
volting practice  of  cannibalism,  viz.  the  widely  spread 
belief  that  the  spirit  and  powers  of  the  victim  pass  into 
the  keeping  of  the  consumer — a  belief  which  thus  made  of 
the  doughty  but  unfortunate  warrior  a  particularly  savoury 
meal. 

But  we  naturally  ask,  if,  as  we  are  entitled  to  assume, 
even  the  loose  association  of  the  primitive  totem  group 
implied  the  existence  of  friendly  relations  between  its 
members:  Whence  came  the  materials  for  the  earlier  insti- 
tution of  cannibalism,  or  the  later  slavery  which  took 
its  place?  This  question  naturally  suggests  the  wider  and 
long-disputed  question:  Is  the  condition  of  primitive  man- 
kind  one  of  peace  or  one  of  war?  To  this  question  there  is, 
in  the  writer's  belief,  no  simple  answer.  There  seems  to 
be,  on  the  one  hand,  evidence  of  primitive  communities 
which  lead  a  normally  peaceful  existence,  either  in  com- 
plete isolation  from  other  communities,  or  maintaining 
friendly  relations  with  them.  On  the  other  hand,  the 
existence  of  warlike  conditions,  spasmodic  or  continual,  be- 
tween other  primitive  communities,  is  undeniable.  There 
is  evidence  of  it  even  among  the  scattered  Australian  com- 
munities, to  say  nothing  of  the  more  closely  packed  negroes 
of  West  Africa,  and  the  warlike  groups  of  South  Africa. 
A  common  source  of  quarrel  among  such  communities, 
often  degenerating  into  a  perpetual  feud,  is  a  dispute  about 
the  boundaries  of  a  hunting  area;  and  such  quarrels  play 
their  part  in  generating  the  later  institutions  of  territorial 
area,  and  even  of  private  property  in  land.  But,  for  our 


44     THE   STATE   AND    THE   NATION 

present  purpose,  we  may  note  that  they  afford  an  obvious 
opportunity  for  the  acquisition  of  captives,  who,  being 
"preserved"  from  slaughter,  became  the  servi,  or  slaves, 
of  their  captors.  This  was  the  deliberate  opinion  of  the 
great  Roman  jurist,  Gaius,  who  certainly  knew  a  good  deal 
about  slavery,  even  if  he  did  not  know  very  much  about 
primitive  institutions. 

But  there  was  another  widely  spread  source,  if  not  of 
slavery,  at  least  of  something  like  it,  in  early  stages  of 
civilisation.  This  was  the  existence  of  DEBTS,  for  which 
the  debtor  "paid  with  his  body."  We  must  not  rashly 
assume  that  the  primitive  debtor  was  the  victim  of  un- 
fortunate mercantile  speculations,  or  even  of  the  failure 
of  crops.  That  would  be  an  anachronism.  Failure  to  pay 
the  composition,  or,  as  our  English  ancestors  called  it,  the 
wergild,  for  the  unintentional  or  excusable  shedding  of 
blood,  was  a  very  common  source  of  debt  in  early  times. 
Strange  as  it  may  sound,  the  practice  of  GAMBLING,  which 
goes  back  a  long  way  in  history,  was  another  source.  From 
these  two  sources,  one  outside  the  community,  the  other 
within  it,  came  the  stream  of  ancient  slavery.  But  it  is 
worth  noting,  as  an  evidence  of  primitive  social  feeling, 
that  the  native  BONDSMAN,  the  debtor,  was  usually  treated 
as  being  on  a  slightly  superior  footing  to  the  captive,  or 
mere  chattel  SLAVE.  He  was,  to  a  limited  extent,  pro- 
tected by  the  law.  He  had  a  chance  of  regaining  his  free- 
dom in  a  comparatively  short  time.  Above  all,  his  offspring 
did  not  inherit  his  servile  position,  but  were,  unlike  the 
offspring  of  chattel  slaves,  born  free.  These  distinctions 
are  clear  in  Roman  Law  from  an  early  period. 

It  is  not  proposed,  in  this  chapter,  to  do  more  than  indi- 
cate one  or  two  of  the  other  more  obvious  consequences 
which  would  follow  the  adoption  of  pastoral  pursuits.  One 
of  the  most  obvious  is  the  increase  of  accumulated  wealth. 
In  addition  to  the  natural  increase  by  the  propagation  of 
animals,  great  in  tropical  countries,  there  would  be  the 
increase  from  the  current  produce  of  the  flocks — the  milk 
of  the  kine  and  goats,  the  wool  of  the  camel  and  sheep. 


KINSHIP   THROUGH   MALES         45 

These  at  an  early  stage  gave  rise  to  by-industries,  which 
have  held  their  own  to  the  present  day,  and  are  hardly 
likely  to  be  superseded.  The  butter  and  cheese  of  the 
pastoralist  play  a  leading  part  in  all  stories  of  patriarchal 
life.  The  spinning  and  weaving  of  wool  are  very  ancient 
industries,  which  gradually  replaced  the  rude  skin  garments 
of  an  earlier  age.  Probably  there  was  a  transition  stage,  in 
which  the  raw  sheepskin,  with  the  fleece  worn  inwards  for 
warmth  and  comfort,  preceded  the  more  wholesome  refine- 
ment of  the  woven  garment;  and  this  transition  stage  may 
well  have  been  reached  by  the  lonely  herdsman  watching 
his  flocks  in  the  chill  of  the  night.  The  term  "industry" 1 
itself  suggests  the  origin  of  craftsmanship  in  the  making 
of  clothes;  and,  indeed,  the  term  "manufacture"  is  far 
more  suitable  for  the  processes  of  the  hand-loom  and  the 
spinning-wheel  than  the  products  of  the  factory  and  the 
mill.  Another  well-established,  but  probably  later,  industry 
of  pastoralism  is  the  tent,  or  movable  house,  at  first,  prob- 
ably, made  of  skins,  later  of  woven  cloth.  For,  in  the 
pastoral  age,  we  are  still  far  from  the  days  of  fixed  dwell- 
ings, which  would  have  been  quite  unsuitable  for  the  roving 
life  of  the  herdsman.  It  is  a  remarkable  fact  that,  in 
ancient  Teutonic  Law,  the  house  is  classed,  strangely  to  our 
ideas,  as  a  movable. 

Naturally,  this  great  increase  of  material  wealth  and  com- 
fort led  to  a  manifest  softening  of  the  crudities  of  existence. 
The  life  of  Primitive  Man  is  generally  hard,  even  in  tropical 
countries.  But,  under  favourable  conditions,  the  life  of  the 
pastoralist  is  far  from  being  unenviable.  Existence  is  no 
longer  a  series  of  violent  alternations  between  hunger  and 
gluttony.  As  experience  increases,  the  food-supply  be- 
comes assured;  and  the  wholesome  variety  of  diet,  resulting 
from  the  use  of  milk  in  its  various  forms,  tends  to  improve 
the  physique  of  the  community. 

But  the  change  must  have  had  even  more  profound  ef- 
fects on  the  development  of  human  character.  Absence 

1  Possibly  from  induere  (to  "put  on,"  "clothe  with").  But  the 
derivation  is  doubtful. 


46     THE    STATE   AND    THE   NATION 

of  foresight  is,  as  has  been  said,  one  of  the  most  striking 
features  of  Primitive  Man.  But  the  occupations  of  the 
pastoralist  are  impossible  without  foresight;  and  the  re- 
wards which  they  bring  to  foresight  are  so  palpable  as  to 
foster  its  growth.  The  choice  of  suitable  pastures,  the 
provision  of  water  supply,  the  protection  of  calves  and 
lambs  from  the  tempest  and  the  fierce  beasts  of  the  jungle, 
the  careful  mating  of  selected  stocks,  the  long  periods  of 
meditation  in  the  nightly  watch  over  the  flocks — all  these 
must  have  tended  to  bring  out  latent  powers  of  the  mind, 
and  to  elevate  the  character.  A  very  significant  tradition 
attributes  the  beginnings  of  astronomy  to  the  observations 
of  the  Chaldean  shepherds.  Nor  did  Art  fail  to  accompany 
Science  in  her  progress.  If  the  latter  gives  the  quaint  story 
of  the  peeled  wands  of  Jacob, x  the  former  is  revealed  to  us 
in  the  shepherd's  pipe  and  harp,  whose  strains  replace  the 
savage  music  of  the  tom-tom  and  the  kitty-katty. 2  The 
beginnings  of  poetry  date  back  to  the  pastoral  age.  Vergil, 
civilised  and  polished  as  he  was,  had  a  true  instinct  for  the 
fundamentals  of  poetry;  and  his  pastoral  idylls  are  by 
many  preferred  to  his  more  ambitious  heroics. 

Finally,  it  cannot  be  doubted,  that  the  effect  of  the 
transition  to  pastoral  life  was  to  bring  out  more  strongly 
those  differences  in  capacity  between  man  and  man,  which, 
in  all  probability,  have  always  existed,  but  for  which  the 
uniformity  of  primitive  life  hardly  allowed  much  scope. 
It  is  true  that  there  might  have  been,  here  and  there,  a 
"mighty  hunter  before  the  Lord";  but  the  "classificatory" 
system  described  in  the  last  chapter  (pp.  25-27)  is  a 
pathetic,  because  all  unconscious,  confession  of  inability 
to  differentiate  between  man  and  man.  In  a  sense  it  may, 
no  doubt,  be  regarded  as  a  recognition  of  the  fundamental 
equality  of  mankind.  In  a  deeper  sense,  it  is  based  upon 
a  poverty  of  opportunities  and  a  consequent  uniformity  and 
poverty  of  needs.  Primitive  law  consists,  as  we  have  seen 
(p.  31),  mainly  of  a  series  of  negations.  The  conception 
of  legal  rights  is  absent  from  it;  because  legal  rights  are 

1  Genesis,  ch.  xxx.  2  West  African  Studies,  p.  64. 


KINSHIP   THROUGH   MALES         47 

based  upon  interests,  and  interests  imply  a  striving  after 
specific  objects.  In  the  undifferentiated  community,  there 
is  no  striving  after  individual  or  specific  interests;  because 
there  is  no  division  of  labour,  no  specialisation  of  functions. 

Very  different  is  the  scene  opened  up  by  the  advent  of 
pastoralism.  Here  the  skill  required  for  the  taming,  breed- 
ing, guarding,  and  exploiting  of  the  flocks  and  herds,  tends 
rapidly  to  a  division  of  labour  between  the  various  members 
of  the  community;  and  the  herdsman,  the  shepherd,  the 
milker,  the  shearer,  and  the  weaver,  make  their  appearance, 
all  acting  under  the  authority  of  the  patriarchal  chief.  For 
long  the  interests  created  by  this  process  remained  con- 
cealed under  this  overmastering  authority.  But,  as  we 
shall  see  in  our  enquiry  into  the  nature  of  patriarchal  re- 
ligion and  law,  they  were  truly,  if  silently,  laying  the  foun- 
dations of  modern  society,  upon  which  the  complex  struc- 
ture of  modern  life  is  built. 

But  if,  reverting  to  a  former  question,  we  ask  whether 
this  change  indicates  a  transition  from  primitive  "com- 
munism" to  modern  "individualism,"  we  are  met  by  a 
doubt  similar  to  that  which  rendered  so  difficult  the  answer 
to  that  earlier  question.  Is  there,  in  truth,  any  such  sharp 
contrast  as  is  implied  by  either  question?  That  the  change 
from  primitive  to  pastoral  conditions  produced  a  vast  im- 
provement in  the  comfort  and  security,  as  well  as  the 
skill,  of  the  individual,  even  of  the  slave,  there  seems  little 
room  to  doubt.  But  did  it  not  also  produce,  equally,  a 
greater  security  and  cohesion  in  the  social  group  itself? 
Above  all,  did  it  not  produce  an  immense  development  of 
that  faculty  of  co-operation  which  is  the  secret  of  social 
progress?  To  these  questions  we  must  now  attempt  to  give 
some  answer. 


CHAPTER  IV 

THE  ORGANISATION  OF  PATRIARCHAL  SOCIETY 

As  we  have  pointed  out  in  the  preceding  chapter,  the  key- 
note of  the  new  type  of  society  produced  by  the  adoption 
of  pastoral  pursuits  is  the  ascendancy  of  the  patriarch,  or 
House  Father,  which  naturally  leads  to  the  organisation 
of  the  social  group  on  the  basis  of  kinship  through  males. 
It  is  not  altogether  easy  to  see  how  this  change  came 
about,  though  the  fact  of  the  change  is  indisputable.  Ac- 
cording to  modern  ideas,  it  is  natural  to  assume  that  the 
superiority  of  men  over  women  as  hunters  would  give  to 
the  former  the  greater  opportunities  for  the  practice  of 
the  art  of  taming  captive  animals,  and  reducing  them  to 
domestic  uses.  But  this  assumption  is  not  altogether  easy 
to  reconcile  with  the  fact  that,  the  further  back  we  go  in 
the  history  of  civilisation,  the  more  closely  do  the  sexes 
approach  to  equality  of  physical  strength  and  cunning.  It 
is  natural,  also,  to  assume,  that  the  handicap  upon  women 
produced  by  the  circumstances  of  childbirth  would  give  a 
definite  superiority  to  men  in  the  arts  of  the  chase.  But, 
again,  we  are  very  apt  to  exaggerate  this  handicap,  by 
importing  into  ancient  society  the  practices  of  modern.  To 
the  primitive  woman,  the  birth  of  a  child  was,  probably,  a 
somewhat  unimportant  event,  so  far  as  any  disturbance  of 
her  physical  activity  was  concerned.  Even  at  the  present 
day,  the  children  of  gypsies,  and  other  primitive  folk,  are 
introduced  into  the  world  with  a  minimum  of  ceremony. 
The  woman  turns  aside  from  the  path,  drops  her  burden^ 
shoulders  it,  and  rejoins  her  companions,  as  though  noth- 
ing particular  had  happened.  Doubtless  such  practices  are 
bad  from  the  physiological  standpoint;  and  they  may  have 

48 


PATRIARCHAL   SOCIETY  49 

led  to  that  general  weakening  of  feminine  physique,  as 
compared  with  the  male,  which  is  so  obvious  a  feature 
of  later  society,  and  which  may,  even  in  its  earlier  stages, 
have  seriously  impaired  woman's  skill  as  a  hunter. 

Much  more  probable  is  it,  however,  that,  not  the  mere 
handicap  of  childbirth,  but  the  subsequent  devotion  of  the 
woman  to  her  offspring,  really  brought  about  the  change 
to  male  ascendancy.  Speculators  on  the  origin  of  the 
different  human  instincts  and  emotions  find  in  the  woman's 
devotion  to  the  care  of  her  children  the  beginning  of  the 
"altruistic"  or  unselfish  element  in  human  character;  and 
they  explain  it  by  the  unconscious  feeling  of  the  woman 
that  the  child,  which  has  for  so  long  been  part  of  herself, 
still  retains  a  close  connection  with  her.  Be  this  as  it  may, 
it  is  evident  that,  as  the  care  devoted  to  children  increased, 
with  the  improvement  in  the  conditions  of  existence,  later 
stimulated  by  the  perception  of  their  value  as  potential 
sources  of  labour,  the  burden  of  this  great  social  duty  fell, 
almost  entirely,  on  women,  leaving  them  less  and  less  time 
for  the  excitements  of  the  chase,  or  the  experiments  which 
lead  to  the  increase  of  material  wealth. 

On  the  other  hand,  as  we  have  seen,  the  direct  rewards 
produced  by  the  successful  taming  of  wild  animals  would 
tend  quickly  to  the  development  of  that  intellectual  curiosity 
which  is,  perhaps,  one  of  the  few  distinguishing  marks  of 
the  masculine  mind,  and  certainly  to  that  aggressive  and 
acquisitive  attitude  which  is  so  patent  an  accompaniment 
of  the  pursuit  of  material  wealth.  We  have  seen,  already 
(p.  42),  how  this  attitude  led  the  pastoralist  to  gather  round 
him  a  group  of  subordinates,  devoted  to  the  purpose  of  in- 
creasing his  possessions. 

It  is  probable  enough  that,  in  the  earliest  stages  of 
patriarchal  life,  the  head  of  the  pastoralist  group  drew  little 
distinction  between  his  wives,  his  children,  his  slaves  and 
bondsmen,  and  his  flocks  and  herds.  They  were  all,  as 
the  ancient  Roman  Law  put  it,  in  his  manus,  or  hand. 
But,  in  the  parcelling  out  of  their  duties,  he  would  naturally 
allot  the  most  important  and  essential  to  his  human  sub- 


50     THE   STATE   AND   THE   NATION 

ordinates  of  his  own  sex;  for  it  is  hardly  to  be  denied, 
however  much  it  may  be  regretted,  that  men  have,  so  far 
back  as  records  go,  believed  implicitly  in  the  superiority  of 
their  own  sex,  at  any  rate  in  "practical,"  i.e.  in  wealth- 
producing  occupations.  Thus  the  herdsman,  the  shepherd, 
the  horse-tamer,  or  the  swineherd,  and,  later,  the  hedge- 
builder  (so  essential  as  a  defender  against  theft),  or  the 
ploughman,  is,  almost  invariably,  a  man;  while  the  less 
essential  tasks  of  weaving,  dairying,  and,  later,  brewing, 
are  left  to  women.  Also  it  may  well  be,  that  the  un- 
doubted superiority  in  strength  and  size  of  the  male  over 
the  female  of  most  domestic  animals,  impressed  their  lords 
with  an  undue  sense  of  the  superiority  in  other  respects  of 
the  masculine  sex.  Be  this  as  it  may,  the  note  of  the  pas- 
toral age  is,  as  we  have  said,  beyond  all  question,  the  pre- 
dominance of  the  male. 

Nowhere  does  this  fact  come  out  more  clearly,  or,  for 
our  present  purpose,  more  fundamentally,  than  in  the  rules 
of  INHERITANCE  recognised  by  patriarchal  law.  As  we 
have  previously  noted  (p.  27),  kinship  is,  in  primitive 
society,  in  so  far  as  it  is  recognised  at  all,  kinship  through 
females,  and  the  persistency  of  "mother-right"  is  marked 
by  the  well-known  survival,  as  obvious  anachronisms,  of 
the  Hebrew  Levirate, l  and  the  rule  of  succession  by  the 
son  of  the  sister  by  the  mother's  side,  which  Miss  Kingsley 
found  at  work  in  West  Africa, 2  and  which  is  to  be  traced 
also  in  the  otherwise  strikingly  masculine  institutions  of 
the  old  Teutonic  codes.  We  call  these  rules  "anachronisms," 
because  they  are  obviously  inconsistent  with  the  general 
scheme  of  things  of  which  they  form  a  part,  just  as  a  sword- 
belt  would  be  in  a  civilian  costume,  while  they  are  not  mere 
freaks,  but  at  one  time  formed  a  natural  part  of  a  system 
based  on  other  principles.  We  have  now  to  show  how  this  is  so. 

The  evidence  is  clear,  that  patriarchal  society  inherited 
from  its  predecessor  a  firm  conviction  of  the  evils  of  inter- 
marriage between  near  kindred.  Probably  this  conviction 

1  See  the  story  of  Ruth,  especially  ch.  iv. 
'West  African  Studies,  p.  437. 


PATRIARCHAL   SOCIETY  51 

was  strengthened  by  observation  of  the  effects  of  inbreeding 
among  animals;  but,  be  this  as  it  may,  patriarchal  society 
was  exogamic,  i.e.  governed  by  the  rule  that  wives  must 
be  sought  among  the  members  of  an  outside  group.  Owing 
to  later  modifications  of  the  earlier  plan,  which  we  shall 
hereafter  notice,  the  rule  itself  became  modified;  and,  as  a 
famous  writer  puts  it,  took  the  form  of  endogamy  for  the 
tribe,  and  exogamy  for  the  clan. *  But  the  simpler  char- 
acter of  the  older  rule  comes  out  most  distinctly  in  the 
earliest  forms  assumed  by  the  marriage  rite,  after  marriage 
has  become  the  permanent  relationship  required  by  pastoral 
pursuits.  In  the  primitive  or  "classificatory"  stage,  there 
would  be  no  question  of  appropriation  of  the  woman  by 
the  man;  consequently,  little  likelihood  of  opposition  to 
the  union  by  the  lady's  social  group,  even  if  we  suppose  its 
members  to  have  regarded  her  as  a  valuable  asset.  But  in 
the  patriarchal  stage,  the  wooer,  or  at  least  his  House  Ruler, 
required,  not  merely  a  temporary  mate,  but  a  servant  for 
life,  and,  naturally,  her  former  proprietors  would  not  be 
inclined  to  part  with  one  of  their  valued  possessions.  This 
assumption  is  clearly  reflected  in  the  two  early  forms  of 
marriage,  viz.  capture  and  sale.  The  former  was,  probably, 
the  older.  It  is  embalmed,  for  example,  in  the  well-known 
legend  of  the  Rape  of  the  Sabine  Women,  as  well  as  in  the 
many  symbolic  survivals,  to  be  found  all  over  the  world, 
which  indicate  the  real  or  fictitious  reluctance  of  the  bride 
to  leave  her  father's  protection  and  become  a  member  of  a 
new  household.  Conspicuous  among  these  is  the  wedding 
ring,  the  last  survival  of  the  chain  by  which  the  husband 
tethered  his  bride  to  her  new  abode;  whilst  the  tightly- 
swathed  feet  of  the  Chinese  lady  are  said  to  be  derived  from 
a  similar  origin. 

Most  interesting,  perhaps,  among  the  signs  of  this  change, 
is  the  evidence  from  Arabic  sources  collected  by  Dr.  Robert- 

1  This  rule  may  be  seen  at  work  in  the  instructive  story  of 
Isaac's  advice  to  his  son  Jacob  on  the  subject  of  marriage 
(Genesis,  ch.  xxviii.). 


52     THE   STATE   AND   THE   NATION 

son  Smith; 1  and  none  the  less  that,  in  the  writer's  view, 
the  learned  collector  of  that  evidence  attributed  the  change 
which  it  indicates  to  a  wrong  cause.  The  Arabs  are,  of 
course,  a  typically  patriarchal  people;  and  the  evidence 
collected  by  Dr.  Robertson  Smith  shows  us  that,  at  a  certain 
Stage  in  their  history,  society  was  divided  between  the 
merits  of  beena  and  baal  marriages.  The  beena  marriage 
is  the  older  type,  in  which  the  woman  forms  temporary  con- 
nections with  different  men,  without  quitting  her  ancestral 
group,  or  forfeiting  its  protection.  The  baal  marriage  is 
the  later  form,  in  which  the  woman  is  permanently  at- 
tached to  the  household  of  her  husband  or  lord  (baal). 
Evidently  there  was  a  lively  conflict  of  ideas,  in  which  the 
rival  attractions  of  the  two  forms  strove  for  the  mastery. 
Ultimately,  however,  the  baal  type  prevailed;  and  the 
permanently  married  wife  succeeded,  by  the  force  of  public 
opinion,  in  depressing  her  more  conservative  sister  into  that 
condition  of  social  inferiority  which  has  long  been  the  por- 
tion, in  progressive  communities,  of  the  sexually  independent 
woman.  It  is  a  pathetic,  but  deeply  interesting,  picture 
of  one  of  the  earliest  internecine  struggles  of  progressive 
society,  in  which  the  future  ruthlessly  stamps  out  the  relics 
of  the  past.  Nor  can  it  be  doubted  that,  in  her  ultimate 
willingness  to  accept  a  lot  in  many  ways  less  attractive  than 
her  former  freedom,  woman  was  again,  perhaps  uncon- 
sciously, manifesting  that  capacity  for  self-sacrifice,  in  the 
interests  of  her  offspring,  which  is  so  marked  and  admirable 
a  feature  in  her  history.  For  it  is  obvious  that,  in  the  con- 
ditions of  the  pastoral  age,  the  children  of  a  baal  marriage, 
born  heirs  of  an  organised  group,  would  start  with  fairer 
prospects  in  life  than  those  of  a  woman  who,  as  we  shall  see, 
could  not  admit  them,  at  least  as  of  primary  right,  to  the 
heirship  of  her  father's  household,  but  merely  as  slaves  or 
bondsmen. 

But  it  is  equally  clear  that  marriage  by  capture,  by  its 
very    nature    an    anti-social    institution,    was    ultimately 

1  Kinship    and  Marriage   in   Early   Arabia,    Cambridge    Uni- 
versity Press,  1885. 


PATRIARCHAL   SOCIETY  53 

superseded,  as  a  normal  practice,  by  the  more  prosaic  but 
peaceful  institution  of  marriage  by  purchase.  This  practice 
implies,  of  course,  a  recognition  of  the  institution  of  sale, 
or,  at  least,  of  barter;  and  we  are,  perhaps,  somewhat 
anticipating,  in  assuming  the  existence  of  this  new  develop- 
ment of  economic  progress,  which  was  but  faintly  recog- 
nised in  primitive  society.  Leaving  this  development  in 
general  for  future  treatment,  we  may  here  accept  it  as  an 
institution  naturally  resulting  from  the  great  increase  of 
material  wealth  which  followed  upon  the  success  of  pastoral 
pursuits,  and  note  how  widely  spread  is  the  notion  of  the 
"bride-price,"  i.e.  the  payment  of  cattle  or  sheep  which 
the  bridegroom  makes  to  the  head  of  the  bride's  household. 
Where,  as  in  the  case  of  Jacob,  the  bridegroom  has  no 
"capital,"  he  transfers  his  services  for  a  time  to  the  house- 
hold of  his  prospective  father-in-law,  and  so  wins  his  wife 
by  his  labour.  The  subject  is,  no  doubt,  complicated  by 
the  existence  of  the  right  which  the  lady  had,  as  we  shall 
see,  to  an  "outfit,"  or  portion,  from  her  ancestral  household; 
but  it  is  probable  that  this  somewhat  later  development  fol- 
lowed upon  a  modification  in  the  nature  of  the  marriage 
tie  which  we  shall  later  notice  (p.  58 ).1  But  the  well- 
known  form  of  Roman  marriage,  the  co-emptio,  in  which  the 
form  of  sale  and  purchase  was  solemnly  conducted  by  the 
archaic  machinery  of  the  bronze  and  scales,  is,  though, 
doubtless,  only  a  picturesque  survival  even  in  the  days  of 
the  Republic,  yet  an  eloquent  testimony  to  the  tenacity 
of  the  practice  on  which  it  was  based.  Nor  does  the  con- 
temporaneous existence  in  Roman  Law  of  the  patrician 
marriage,  with  its  imposing  religious  rites,  in  the  least 
disprove  the  former  existence,  even  in  aristocratic  circles, 
of  the  root  ideas  which  accompany  the  marriage  by  capture 
and  sale.  For,  as  is  well  known,  the  conjarreatio,  like  the 
co-emptio  (perhaps  even  more  completely),  conferred  upon 

1  Tacitus  (Germania,  c.  18),  in  a  well-known  passage,  contrasts 
the  then  Roman  and  the  German  practices.  The  wife  does  not  give 
dower  to  the  husband,  but  the  husband  to  the  wife.  The  manus 
marriage  was  almost  extinct  in  Rome  by  the  time  of  Tacitus. 


54     THE   STATE  AND   THE  NATION 

the  husband  the  manus,  or  complete  lordship,  of  the  wife's 
person,  property,  services,  and,  above  all,  her  children. 

For  it  is  almost  needless  to  say  that,  in  this  respect,  the 
offspring  of  the  marriage  were  in  no  better  position  than 
their  mother.  The  complete  authority  of  the  House  Father 
over  the  lives  and  persons  of  his  descendants  in  the  male 
line,  is  one  of  the  most  completely  established  features  of 
patriarchal  organisation.  In  Roman  Law,  it  is  embodied 
in  the  terrible  phrase  jus  vitce  necisque  ("right  of  life  and 
death"),  and  the  complete  inability  of  the  filius  familias, 
down  to  the  end  of  the  Republic,  to  own  any  individual 
property.  If  we  know  less  in  detail  of  the  mund  among 
the  barbarian  invaders  of  Western  Europe,  it  is  only  because 
it  disappeared  at  an  earlier  stage  than  among  the  Romans,  x 
whose  intensely  conservative  system  of  law  retained  it 
until  it  had  become  an  anachronism.  The  stories  of  Abra- 
ham and  Isaac, 2  and  of  Jephthah's  rash  vowj 3  reveal 
incidentally  the  absolute  power  of  the  patriarch  over  his 
children  of  both  sexes.  And  this  power  did  not  cease  with 
the  first  generation,  in  the  case  of  sons.  It  was,  of  course, 
only  a  natural  consequence  of  the  power  of  the  House 
Father,  that  he  should  control  the  marriages  of  his  daugh- 
ters; for  by  such  marriages  he  lost  their  services.  But, 
even  in  comparatively  late  times,  the  Roma  paterfamilias 
could  dispose  of  his  sons  also  in  marriage;  and  their  off- 
spring came  under  his  power.  Nay,  he  could,  in  theory  at 
least,  dissolve  their  marriages  against  their  will;  though, 
by  the  time  of  the  classical  jurists  of  the  early  Empire, 
such  an  exercise  of  his  authority,  without  good  reason,  had 
come  to  be  looked  on  as  scandalous. 

But,  in  the  case  of  male  descendants,  this  apparently 
rightless  position  was  modified  by  one  great  fact.  It  lasted 
only  till  the  death  of  the  immediate  parent.  Then  the  son 
found  himself  a  free  man,  entitled  to  a  share  of  the  family 

1  Even  where  the  barbarians,  e.g.  in  the  south  of  what  is  now 
France,  adopted  the  Roman  Law  (pays  de  droit  ecrit)  they 
modified  it  by  the  maxim:  puissance  de  pere  n'a  lieu. 

1  Genesis,  ch.  xxii.  8  Judges,  ch.  xi. 


PATRIARCHAL   SOCIETY  55 

possessions,  and  himself  endowed,  as  regards  his  own 
descendants  in  the  male  line,  with  that  power  to  which 
he  had  himself  been  subject.  Apparently  there  was  a  stage 
during  which  this  altered  position  did  not  give  him  the  right 
to  demand  an  actual  division  of  the  paternal  inheritance, 
but  merely  entitled  him  to  carry  it  on  with  his  brothers, 
in  a  sort  of  federal  group,  known  to  historians  as  the  "joint 
undivided  family."  But  such  an  arrangement  must  have 
been  singularly  inconvenient;  and  we  are  not  surprised 
to  find,  early  in  legal  history,  a  special  process  for  putting 
an  end  to  it.  Probably  the  great  difficulty  in  the  way  was 
the  sharing  of  the  debts  owing  to  and  by  the  deceased 
patriarch,  to  which  the  whole  inheritance  was  entitled, 
and  for  which  it  remained  liable.  It  is  well  known, 
that  such  rights  and  liabilities  remain  legally  inalienable, 
long  after  the  legal  transfer  of  concrete  ownership  is  definite- 
ly recognised  by  law;  and  European  merchants  are,  for 
example,  often  startled  by  the  devotion  with  which  an  Ori- 
ental will  work  to  pay  off  the  debts  of  a  deceased  ancestor, 
for  which,  according  to  modern  ideas,  he  is  in  no  way  re- 
sponsible. Still,  in  course  of  time,  the  step  is  taken.  We 
can,  for  example,  detect  it  as  one  of  the  reforms  brought 
about  by  the  famous  Twelve  Tables  of  the  Roman  Law. 1 
But  the  solidarity  of  the  patriarchal  household  long  survived 
in  the  rule,  so  strange  to  modern  ideas,  that  the  heir's  lia- 
bility for  the  portion  of  his  ancestor's  debts  allotted  to  him 
was  not  restricted  to  the  property  which  he  had  inherited. 
The  modern  rule,  that  the  debtor's  death  wipes  out  the 
personal  liability,  and  leaves  the  creditor  with  recourse  only 
to  the  dead  man's  property,  was  only  established  by  gradual 
stages  in  Roman  Law,  at  first  by  giving  the  heir  the  right 
to  refuse  the  inheritance  altogether,  only  later  by  giving  him 
the  right  of  "inventory,"  i.e.  the  power  to  separate  the  in- 
heritance from  property  acquired  by  his  own  labour.  In 
English  law-,  the  complete  liability  of  the  heir  for  his  an- 
cestor's debts  survived  at  least  until  the  twelfth  century 

1  Nomina   hereditaria  ipso   jure    divisa. 


56     THE   STATE   AND   THE   NATION 

A.D.,  and  was  only  abolished,  apparently,  as  the  unforeseen 
result  of  indirect  causes. 

One  other  very  striking  evidence,  alike  of  the  power  of 
the  patriarch,  and  of  the  importance  attached  by  pastoral 
society  to  the  continuance  of  the  male  line,  is  to  be  found 
in  the  widely  spread  practice  of  ADOPTION.  To  a  modern 
Englishman  or  American,  with  his  firm  belief  in  the  right 
of  a  parent  to  distribute  his  inheritance  as  he  pleases,  the 
process  of  adoption  has  small  legal  significance.  In  Eng- 
land, at  any  rate,  its  effects  are  now  purely  moral.  But,  in 
patriarchal  society,  adopted  children  ranked  as  full  mem- 
bers of  the  household,  and  were  entitled,  equally  with 
natural  offspring,  to  share  in  the  inheritance  in  the  first 
rank  of  heirs.  In  other  words,  the  fiction  that  adoption  is 
natural  reproduction,  so  clearly  evidenced  by  the  cere- 
monies attendant  on  the  process,1  is  carried  to  its  logical 
conclusion. 

It  is  generally  assumed,  and  there  is,  doubtless,  much  to 
be  said  in  favour  of  the  view,  that  adoption  was,  originally, 
only  resorted  to  in  default  of  natural  offspring.  But  it  is 
quite  clear  that,  even  if  this  view  is  correct,  the  advantages 
of  the  process  as  a  means  of  increasing  the  patriarchal 
household  were  soon  understood;  and  fosterage  or  adoption 
plays  a  very  large  part  in  the  life  of  the  pastoral  com- 
munity. It  is  true  that  there  is  strong  evidence  in  Roman 
Law  that  posthumous  adoption,  i.e.  the  appointment,,  by 
will  or  testament,  of  heirs  outside  the  pastoral  group,  was 
originally  subject  to  severe  restrictions  in  the  interest  of 
natural-born  or  previously  adopted  heirs.  But  that  was 
because,  as  we  shall  hereafter  see,  the  practice  of  testa- 
mentary disposition  was  itself  an  innovation  on  the  original 
ideas  of  inheritance.  Meanwhile,  it  is  sufficient  to  observe, 
that  the  adopted  child  ranked  as  a  full  member  of  the 
household,  subject  only  to  the  rule,  that  a  son  might  not 
have  an  heir  foisted  upon  him,  against  his  will,  by  the 

1  See  the  striking  expression  of  Rachel  in  deciding  to  give  her 
maid  Bilhah  to  her  husband :  "She  shall  bear  upon  my  knees" 
(Genesis,  xxx.  3). 


\ 
PATRIARCHAL   SOCIETY  57 

adoption  of  an  outsider  as  a  grandchild  by  the  House 
Father.  Thus,  to  refer  once  more  to  the  instructive  story 
of  the  family  of  Jacob,  the  sons  of  the  handmaids  Bilhah 
and  Zilpah  ranked,  along  with  the  sons  of  Jacob  by  his 
legitimate  wives,  Leah  and  Rachel,  as  full  heirs  of  the 
patriarch,  and  founders  of  the  later  branches  of  the  stock 
of  Israel.  Needless  to  say,  no  woman  could  adopt. 

To  sum  up  the  influence  upon  social  organisation  of  the 
rules  discussed  in  the  present  chapter,  we  may  say  that 
their  effect  was  gradually  to  substitute,  for  the  primitive 
totem  group,  the  patriarchal  community,  based  on  real  or 
fictitious  relationship  through  male  descent.  But  the  names 
used  by  writers  who  deal  with  this  subject  are  arbitrary  and 
confusing.  The  word  "tribe,"  which  is,  perhaps,  the  most 
common  employed  to  signify  the  whole  of  the  group 
descended,  or  believed  to  be  descended,  from  a  common 
male  ancestor,  seems  to  be  an  accidental  borrowing  from 
the  practice  of  Roman  historians;  while  the  terms,  gens, 
"kin,"  m&gth,  sippe,  and  so  on,  are  used  without  any  pre- 
cise or  definite  meaning.  This  is  an  almost  inevitable  result 
of  the  fact  that,  by  the  nature  of  things,  the  patriarchal 
group  was  always  tending  to  resolve  itself  into  smaller 
units.  As  each  House  Father  died,  his  sons,  perhaps  after 
a  period  of  "joint  undivided"  industry  (p.  55),  split  up  into 
independent  households,  which  reproduced  the  conditions 
of  the  ancestral  group.  For  a  long  time,  helped  by  that 
careful  preservation  of  pedigree  records,  or  genealogies,, 
which  is  so  marked  a  feature  of  patriarchal  life,1  these  sub- 
ordinate groups  maintained  a  sense  of  unity  which  drew 
a  line  between  them  and  strangers  in  blood.  Thus,  be- 
tween all  the  descendants  of  Abraham  and  the  stranger 
peoples — the  Canaanites,  Moabites,  and  Amalekites — a 
great  gulf  was  fixed,  which  is  indicated  in  the  story,  more 
than  once  previously  quoted,  of  the  marriage  quest  of 
Jacob.2  Sometimes,  as  in  the  case  of  the  Welsh  Laws, 

1  See  the  long  lists  in  the  Hebrew  Scriptures  (e.g.  I  Chron.  chs. 
i.-ix.),  and  the  Welsh  and  Irish  Synnachy,  or  pedigree-keeper. 
'Genesis,  ch.  xxviii. 


58     THE   STATE   AND   THE   NATION 

there  is  an  attempt  to  impose  a  definite  limit  on  the  number 
of  the  generations  which  are  regarded  as  still  remaining 
a  unit  for  practical  purposes.  There  the  tribal  chief  is 
described  as  "the  oldest  efficient  man  in  the  kindred  to  the 
ninth  descent,  and  a  chief  of  household";  and  we  may,  per- 
haps, assume  that,  beyond  these  limits,  the  legendary 
founder  of  the  tribe  would  be  a  mere  eponym,  or  traditional 
and  sentimental  influence.  Thus  patriarchal  society  was 
what  is  technically  called  fissiparous,  i.e.  tending  to  break 
up  continuously  into  fresh  groups,  with  the  process  of 
generation,  though  always  based  on  the  ultimate  unit  of 
the  pastoral  household,  actually  living  together  as  a  single 
family,  under  the  dominion  (domus  unio)  of  a  male  as- 
cendant. The  practice  of  adopting  patronymics,  i.e.  names 
indicative  of  descent,  such  as  the  prefixes  "Mac"  among  the 
Kelts  and  "Ben"  among  the  Syrians  ("Macintosh,"  and 
"Ben-Hadad"),  and  the  suffixes  "ing"  among  the  English 
and  "off"  among  the  Russians  ("Basing,"  "Romanoff"), 
served  to  bind  together  the  wider  groups,  and  to  keep  alive 
the  sentiment  of  race  or  kinship. 

In  conclusion,  two  of  the  practical  consequences  of  this 
"fissiparous"  tendency  of  patriarchal  society  may,  perhaps, 
be  noticed. 

One  was  the  gradual  re-establishment  of  peaceful  marital 
relations  which,  while  preserving  the  root  principle  of 
exogamy  (p.  51),  rendered  unnecessary  the  resort  for  wives 
to  wholly  alien  communities,  which  would,  naturally,  only 
be  inclined  to  yield  them  as  the  result  of  force,  or  the 
fruits  of  barter.  For,  while  the  wholly  alien  group  would, 
inevitably,  regard  as  pure  loss  the  departure  of  one  of  its 
women  to  a  stranger  household,  a  kindred  group  would  look 
upon  such  a  step  as  a  much  smaller  loss,  or,  it  may  be,  as 
an  actual  gain  in  the  strengthening  of  friendly  relations. 
Thus  the  way  was  prepared  for  the  marriage  by  free  con- 
sent, or  CONTRACTUAL  MARRIAGE,  in  the  place  of  the  older 
marriages  by  capture  and  purchase.  In  this  new  type  of 
marriage,  the  wife  does  not  pass  into  the  manus  or  power 
of  her  husband;  though  the  offspring  of  the  marriage  do. 


PATRIARCHAL   SOCIETY  59 

She  retains  her  rights  as  a  member  of  her  ancestral  house- 
hold, and  brings  into  the  marriage  abode  her  dos  or  portion 
of  her  family  wealth.  It  is  true  that,  according  to  Roman 
Law,  the  administration  and  control  of  this  fund  remained 
with  the  husband  during  the  marriage.  But  if  the  marriage 
was  childless,  or  if  it  was  arbitrarily  dissolved  by  the  hus- 
band, the  capital  returned  on  its'  termination  to  the  wife's 
ancestral  group;  and  later  Roman  Law  is  full  of  provisions 
for  safeguarding  it  during  the  husband's  administration. 
This  state  of  things  is,  probably,  what  is  meant  by  the 
writer  previously  alluded  to  (p.  51)  as  "endogamy  within 
the  tribe,  and  exogamy  within  the  clan";  and  its  adoption 
opened  up  an-  entirely  new  chapter  in  marital  and  family 
relations. 

The  other  consequence  of  the  "fissiparous"  tendency  of 
patriarchal  society  to  be  noted  is  the  appearance  of  the 
council  of  ELDERS,  the  rachimburgi  of  the  Barbaric  Laws, 
the  Henadwr  of  the  Welsh,  the  Senate  of  Rome,  the  Pan- 
chayat  of  India.  So  long  as  the  gentile  group  held  together, 
it  recognised  the  authority  of  the  paramount  chief.  But, 
after  the  revered  founder  of  the  tribe,  the  eponym,  had 
passed  away,  it  is  not  to  be  supposed  that  men  who,  in  their 
own  households,  exercised  arbitrary  power  over  the  various 
ranks  of  their  dependents,  would  tamely  submit  to  the 
despotic  control  of  one  who  had  been,  within  living  memory, 
but  one  of  themselves,  probably  even  a  humble  filius  familias 
in  his  House  Father's  "hand" — or,  as  the  Welsh  Laws  put 
it,  "at  his  father's  platter,  and  his  father  lord  over  him, 
and  he  is  to  receive  no  punishment  but  that  of  his  father, 
and  he  is  not  to  possess  a  penny  of  his  property  during  that 
time,  only  in  common  with  his  father."  By  whatever  rules 
the  Chief  was  chosen,  whether  by  primogeniture  or  by  free 
selection  from  a  limited  circle,  it  would  be  only  natural  that 
his  former  compeers  should  claim  a  share  in  his  decisions, 
and  a  right  to  guard  the  tribal  traditions.  For,  as  we  shall 
see  when  we  come  soon  to  speak  of  patriarchal  religion  and 
patriarchal  law,  the  very  existence  of  patriarchal  society 
is  believed  to  depend  upon  the  reverent  maintenance  of  the 


60     THE    STATE   AND    THE   NATION 

ancestral  rites  and  customs,  which  have  been  handed  down 
by  tradition  from  remote  ages.  The  tribal  Chief,  unlike 
the  House  Father,  was  no  despot;  he  was  but  the  mouthpiece 
of  his  tribe,  the  person  in  whom  its  common  life  was  em- 
bodied— the  cyning,  the  kin-child  or  "king,"  as  the  Eng- 
lish called  him.  When  we  find,  among  patriarchal  peoples, 
a  ruler  exercising  despotic  powers,  we  may  be  sure  that  he 
belongs  to  a  new  order  of  ideas,  which  circumstances  are 
beginning  to  produce,  and  which  will  ultimately  sweep  away, 
or,  at  least,  profoundly  modify,  the  old  gentile  system.  Of 
whom,  exactly,  the  Council  of  Elders  consisted,  it  is  not  pos- 
sible to  say  definitely;  the  custom,  doubtless,  varied  with 
the  tribe.  But  its  existence  as  part  of  the  normal  structure 
of  developed  patriarchalism  is  undeniable,  as  is  also  its 
importance  in  the  future  of  institutions. 


CHAPTER  V 

PATRIARCHAL  RELIGION 

AN  interesting,  though,  perhaps,  somewhat  speculative  at- 
tempt to  generalise  on  the  history  of  religion,  lays  it  down, 
that  Man  begins  by  worshipping  some  object  external  to 
himself,  a  stone  or  tree,  or  rather,  perhaps,  the  spirit  which 
is  believed  to  operate  through  such  object.  He  then  passes 
to  a  stage  at  which  he  worships  a  being  like  himself, 
usually  a  deceased  ancestor,  or  one  whom  he  believes  to 
have  been  such.  Finally,  he  rises  to  the  conception  of  a 
divine  being  who  combines  in  himself  the  qualities  of  the 
internal  and  the  external  world — the  Me  and  the  Not  Me — 
and  rules  both.  We  have  seen,  to  some  extent  (pp.  29-30), 
in  what  way  this  generalisation  is  supported  by  the  Anim- 
ism of  primitive  mankind,  with  the  Fetishism,  or  super- 
stitious belief  in  the  effectiveness  of  material  objects.  We 
have  now  to  apply  the  formula  to  the  test  of  patriarchal 
religion.  Only  we  must  remember  that,  of  all  human  in- 
stitutions, religious  beliefs  and  practices  are  the  most 
tenacious;  so  that  we  must  not  be  surprised  to  find  sur- 
vivals of  earlier  stages  lingering  on  into  stages  in  which 
they  have  lost  all  real  meaning. 

It  is  clear  that  the  formula  which  we  have  described 
finds  great  support  from  the  scheme  of  patriarchal  religion, 
which  is,  almost  universally,  ANCESTOR- WORSHIP,  i.e.  the 
cult  of  deceased  ancestors.  Even  at  the  present  day,  this 
type  of  religion  is  practised  by  immense  multitudes,  pos- 
sibly by  a  majority,  of  the  human  race;  in  times  past,  it  has 
played  an  enormous  part  in  human  history.  If  it  has  its 
dark  side,  for  example,  in  the  cruel  sacrifices  of  the  ancient 
Britons  and  the  Scandinavian  peoples,  it  is  capable  of 

61 


62     THE   STATE   AND   THE  NATION 

beautiful  and  dignified  manifestations,  as  in  the  Shintoism 
of  China  and  Japan,  and  the  piety  of  patrician  Rome. 

With  regard  to  its  origin,  many  suggestions  have  been 
made,  of  which,  perhaps,  the  two  most  important  may  be 
described  as  the  Ghost  Theory  and  the  Inventions  Theory. 
The  former  assumes  that  the  imposing  form  of  the  deceased 
patriarch  continues  to  haunt  the  scenes  of  his  earthly  life, 
appearing  to  his  descendants  at  moments  of  crisis — storm, 
plague,  or  battle — or  in  dreams.  We  have  seen  already 
that  the  belief  in  a  spirit  world  is  one  of  the  earliest  at- 
tributes of  Man;  it  would  not,  therefore,  need  any  supreme 
exercise  of  the  imagination  to  figure  the  venerated  form  of 
the  House  Father  passing  into  that  world,  but  continuing 
still  to  take  an  interest  in  the  household  in  which,  during 
his  earthly  life,  he  was  so  profoundly  concerned.  The 
mystery  of  dreams  is  still  unsolved,  and  still  of  deep  inter- 
est to  humanity.  If  M.  Bergson's  famous  theory  is  at  all 
near  the  truth,  it  would  be  highly  probable  that,  during 
sleep,  when  all  the  activities  of  the  mind  are  at  rest,  and  it 
becomes  the  mere  reflecting  surface  for  impressions  which 
have  become  part  of  the  unconscious  self,  the  figure  of  that 
House  Father,  who,  in  the  most  impressionable  years  of 
childhood,  had  loomed  so  largely  on  the  mental  horizon 
of  the  sleeper,  should  reappear  to  him  again  and  again.  In 
the  view  of  Patriarchal  Man,  these  apparitions  could  have 
but  one  meaning.  The  distinction  between  fact  and  im- 
agination would,  of  course,  be  wholly  beyond  his  capacity. 
He  would  believe  in  the  continued  existence  of  his  ancestor, 
because  he  continued  to  see  him.  Doubtless  he  would  be 
puzzled  by  the  change  in  the  conditions  of  his  ancestor's 
appearance,  from  the  daily  intercourse,  not  (probably) 
without  constant  occasions  of  physical  contact,  to  the  inter- 
mittent appearances  during  sleep,  unaccompanied  by  cor- 
poral touch.  But,  as  we  know  from  experience,  a  dream 
may  include,  not  merely  apparition,  but  action  and  speech; 
and,  as  we  have  already  seen,  Patriarchal  Man  had  in- 
herited from  his  predecessor  a  ready  disposition  to  believe 
in  the  existence  of  spirit  beings. 


PATRIARCHAL   RELIGION  63 

Can  we  doubt  that  such  a  state  of  things  would  produce 
important  results  in  the  conduct  of  Patriarchal  Man? 
Would  not  his  natural  instinct  be  to  attempt  to  please,  by 
every  means  in  his  power,  this  being  of  whom,  during  his 
earthly  life,  he  had  stood  in  such  awe,  and  whose  power,  he 
might  well  feel,  would  be  even  more  terrible  when  directed 
from  that  spirit  world  of  which  his  descendant  knew  so 
little  and  dreaded  so  much?  Would  he  not  be  scrupulously 
careful  to  obey  those  injunctions  of  his,  which,  in  earlier 
days,  had  been  so  sternly  imposed  upon  his  household? 
Would  his  descendant  not  order  his  life,  with  scrupulous 
care,  upon  the  model  which  his  ancestor  had  set  before  him? 
Would  he  not  observe  the  ancestral  times  and  seasons  for 
driving  the  flocks  to  the  hill  pastures,  and,  again,  bringing 
them  back  to  the  winter  folds,  the  days  for  mating  the  bulls 
and  the  cows,  the  rams  and  the  ewes?  Would  he  not  in- 
nately follow  the  methods  of  killing,  skinning,  dismember- 
ing, and  apportioning  the  animals  needed  for  food,  of  mak- 
ing the  butter  and  the  cheese,  of  spinning  and  weaving  the 
wool?  We  know,  for  a  fact,  that,  in  all  patriarchal  society, 
this  rigid  adherence  to  ancestral  precedent  is  the  most  con- 
spicuous feature  of  life;  and,  if  we  make  all  allowance 
for  that  deep-seated  dislike  of  change  (due  partly  to  fear, 
partly  to  dislike  of  mental  exertion)  which  is  so  char- 
acteristic a  feature  of  all  mankind  with  few  exceptions,  we 
shall  not  fail  to  realise  how  intensely  this  primordial  instinct 
would  be  fostered  by  the  belief  that,  in  yielding  to  it, 
Patriarchal  Man  was  but  following  the  dictates  of  piety  and 
common  prudence. 

But  another  and  more  positive  result  would  follow  from 
the  apparitions  of  the  ancestral  ghost,  and  the  consequent 
belief  in  the  continued  existence  of  the  ancestor.  Doubt- 
less, during  his  earthly  life,  this  ancestor  was  fairly  insistent 
upon  the  satisfaction  of  his  bodily  needs,  and  not  a  little 
inclined  to  visit  with  his  wrath  those  of  his  subordinates 
who  failed  to  supply  those  needs.  The  descendant,  now 
become  a  House  Father  himself,  was  familiar  with  his  own 
feelings  and  tendencies  in  that  direction.  The  obvious 


64     THE   STATE   AND    THE   NATION 

lesson  would  not  be  lost  upon  him.  And  so  we  get  that 
wide-spread  practice  of  OFFERINGS  TO  THE  DEAD,  which  is 
so  marked  a  feature  of  patriarchal  life.  Once  more,  we 
realise  that  this  practice  had  its  forerunner  in  the  sacrifices 
offered  by  Primitive  Man  (p.  32)  to  propitiate  the  spirits 
whom  he  dreaded;  and  it  may  well  be  that  this  feeling 
carried  over  into  Ancestor- Worship,  and  gave  rise  to  those 
grosser  forms  of  human  sacrifice  which  disgrace  an  other- 
wise humaner  creed.  Especially  would  this  be  the  case 
where  the  ancestor  had  died,  or  was  supposed  to  have  died, 
as  the  result  of  foul  play,  and  the  desire  to  gratify  his  sup- 
posed feelings  of  revenge  prompted  the  sacrifice.  But,  in 
the  main,  the  motive  of  the  ancestral  sacrifice  is  to  satisfy 
the  more  peaceful  desires  of  the  dead  ancestor,  his  hunger 
and  thirst;  and  the  offerings  chosen — the  oxen  and  sheep, 
the  wild  fruits,  and,  later,  the  corn,  wine,  and  oil — are 
chosen  with  this  end  in  view. 

It  cannot  well  be  doubted,  that  from  these  offerings  are 
derived  some  of  the  most  refined  practices  of  later  civilisa- 
tion. Take,  for  example,  the  modern  economy  of  food. 
The  primitive  meal  was  either  a  hasty  and  surreptitious 
gulping  down  of  prey  captured  by  the  individual  hunter, 
or  a  disgusting  common  orgy  by  the  pack  which  had  been 
successful  in  rounding  up  a  herd  of  captives.  The  patri- 
archal meal,  at  least  at  ordered  times  and  seasons,  became 
gradually  a  religious  ceremony,  marked  by  deliberation  and 
restraint,  by  pauses  for  the  change  of  offerings,  by  the 
presidency  of  the  House  Father,  who  dispensed  the  sacri- 
ficial victims  in  graduated  portions  to  the  members  of  his 
assembled  household  in  their  various  ranks.  The  practice 
of  "grace  before  meat"  is  one  of  the  most  striking  survivals 
of  this  original  character  of  the  domestic  meal;  another 
is  the  practice  of  pledging  healths,  i.e.  of  calling  the  de- 
ceased ancestor  to  witness  the  friendly  intentions  of  the 
host.  Doubtless,  the  primitive  animal  long  survived  in 
Patriarchal  Man;  for  long  the  orderly  domestic  meal  was 
only  an  occasional  matter,  while  the  common  everyday 
needs  of  hunger  were  still  satisfied  in  primitive  fashion. 


PATRIARCHAL    RELIGION  65 

But  the  more  refined  custom  gradually  spread,  to  the  im- 
mense gain  in  all  that  we  understand  by  "good  manners"; 
and  it  is  a  distinct  loss,  at  least  from  that  point  of  view, 
that  the  exigencies,  or  assumed  exigencies,  of  modern  econ- 
omic life,  should  have  resulted  in  the  exclusion  of  servants 
from  a  share  in  the  family  meal,  and  the  doubtful  boon  of 
the  "quick  lunch."  The  latter  may  be  a  necessity;  but  it 
is  a  distinct  "reversion  to  type." 

Compared  with  the  consistent  logic  of  the  Ghost  Theory, 
the  evidence  for  which  is  abundant  in  patriarchal  literature 
(nowhere  more  than  in  the  Old  Testament  Scriptures),  the 
somewhat  doubtful  arguments  for  the  Inventions  Theory 
seem  to  the  writer  thin  and  far-fetched.  The  view  seems  to 
be  that  Patriarchal  Man,  impressed  by  the  undoubted 
conveniences  of  his  life,  as  contrasted  with  the  rude  exist- 
ence of  the  more  primitive  communities  with  which  he  is 
supposed  to  be  familiar,  and  believing,  doubtless  with 
truth,  these  conveniences  to  be  the  results  of  the  intelligence 
of  his  forefathers,  was  filled  with  gratitude  for  these  dis- 
coveries in  the  arts  of  life  which  had  produced  his  superior 
lot,  and  expressed  that  gratitude  in  worship  of  those  to 
whom  he  owed  them.  There  is,  doubtless,  some  evidence 
for  this  theory,  in  the  legends  of  antiquity,  such,  for  ex- 
ample, as  the  story  of  Prometheus,  the  Fire-Bringer.  But, 
as  we  have  before  urged,  gratitude  is  not  a  characteristic  of 
Primitive  Man;  whilst  fear  and  imitation  are  deep-seated 
and  primal  characteristics.  It  is,  indeed,  not  unlikely,  that 
a  long  course  of  such  practices  as  are  the  well-known  fea- 
tures of  Ancestor-Worship  would  tend  to  beget  feelings  of 
gratitude;  as  the  growth  of  reason,  and  the  beginnings  of 
philosophical  speculation,  led  mankind  to  consider  the  pur- 
pose and  meaning  of  these  practices.  It  is,  likewise,  not 
improbable,  that  a  gradual  perception  of  the  value  and  use- 
fulness of  the  various  processes  of  domestic  life  would  beget 
gratitude  for  the  inventors  of  them.  Nor,  finally,  is  it  un- 
likely, that  any  proposed  departure  from  these  traditional 
practices  by  those  advocates  of  reform  who  are  usually  re- 
garded with  fierce  hostility  as  the  enemies  of  society,  until 


66     THE   STATE   AND   THE   NATION 

they  are  gradually  recognised  as  its  benefactors,  would 
drive  the  supporters  of  the  existing  state  of  things  into 
alleging  the  ingratitude  of  those  who  proposed  to  depart 
from  the  practices  of  deceased  ancestors.  For  if  there  is 
one  feature  of  Ancestor-Worship,  in  all  its  forms,  more 
striking  than  another,  it  is  its  intense  and  rock-like  resist- 
ance to  change.  Nevertheless,  all  these  arguments  appear 
to  suffer  from  the  fatal  objection,  that  they  transpose  cause 
'  and  effect;  in  other  words,  they  allege  an  attitude  of  mind 
which  is  produced  by  Ancestor- Worship,  as  the  origin  of 
Ancestor-Worship  .itself. 

If  we  now  turn  from  the  origin  of  Ancestor- Worship  to 
consider  its  place  in  the  scheme  of  social  development,  we 
shall  best  achieve  our  object  by  contrasting  it  briefly  with 
the  type  of  religion  which  preceded  it  and  that  which  has 
followed  it. 

We  have  suggested  already,  that  one  prominent  difference 
between  Ancestor-Worship  and  the  more  primitive  Anim- 
ism is  the  change  in  the  object  of  worship  or  reverence. 
Primitive  Man  fears  and  worships  unseen  spirits  as  con- 
centrated in,  or  manifested  through,  external  objects. 
Patriarchal  Man  cultivates  the  spirits  of  those  who  were 
once,  like  himself,  human  beings.  It  would,  doubtless,  be 
far-fetched  to  argue,  that  he  thereby  approaches  the  great 
belief  implied  in  modern  physical  science,  viz.  that  Man  is, 
at  least  potentially,  the  master  of  the  universe,  and  not  the 
universe  of  Man.  But  it  is  not  unreasonable  to  suggest, 
that  this  new  attitude  helped,  albeit  unconsciously,  to 
build  up  in  mankind,  or,  at  least,  such  communities  as 
adopted  Ancestor- Worship,  that  social  capacity  which  was 
the  necessary  groundwork  and  machinery  of  subsequent 
social  advance.  We  have  already  seen  (p.  32),  that  even 
Primitive  Man  could  be  brought  to  believe,  that  certain 
exceptional  persons — magicians,  medicine-men,  and  the 
like — had  power  to  affect,  or  deflect,  the  action  of  those 
spirits  whose  terrible  powers  he  feared.  But  the  mysterious 
and  uncertain  practices  of  sorcery  and  witchcraft,  occa- 
sionally exercised,  despite  the  fascinations  which  they  un- 


PATRIARCHAL   RELIGION  67 

doubtedly  enjoyed,  could  not,  in  the  long  run,  fail  to  dwindle 
in  importance  before  the  open,  regular,  and  sure  operation 
of  those  beneficent  processes  which  gave  to  Man  his  daily 
food  and  drink,  his  shelter  and  clothes.  And  as  these,  by 
daily  habit  and  practice,  became  associated  in  his  mind 
with  the  comfort  and  beauty  *•  of  the  ancestral  hearth,  with 
its  rites  and  ceremonies,  he  would  inevitably  learn  to  as- 
sume a  greater  confidence  in  himself  and  his  fellows.  No 
longer  a  terrified  creature,  stumbling  about  in  an  universe 
of  unknown  terrors,  he  would  gradually  acquire  a  dignity 
and  serenity  of  mind  which  would  mark  a  distinct  advance 
in  social  progress. 

Again,  as  we  have  seen,  primitive  religion  and  primitive 
law  (which  is  inextricably  mixed  up  with  it)  are  mainly,  if 
not  entirely,  negative  in  essence  as  well  as  in  form.  Patri- 
archal religion,  on  the  other  hand,  is  POSITIVE,  that  is,  it 
inculcates  on  its  followers  the  daily  and  hourly  doing  of 
certain  acts.  The  cattle  are  to  be  fed  in  a  certain  way,  at 
a  certain  time.  The  sheep  are  to  be  shorn  at  such  a  season, 
and  in  such  a  manner.  The  kine  are  to  be  milked  at  certain 
hours.  The  cheese  and  butter  are  to  be  made  by  certain 
processes.  Man  is  no  longer  a  child  subject  to  a  continual 
stream  of  "Don'ts."  The  commandment  is  no  longer:  "Thou 
shalt  not,"  but:  "Thou  shalt."  It  is,  perhaps,  fanciful  to 
note  the  fact  that  the  only  positive  commandment  in  the 
Hebrew  Decalogue  is,  in  effect,  the  central  commandment 
of  patriarchal  religion:  "Honour  thy  father  and  thy 
mother."  But  the  coincidence  is  striking. 

Incidentally,  it  may  be  noticed,  that  the  appearance  of 
patriarchal  religion  does  not  always  mean,  perhaps  rarely 
means,  a  total  abandonment  of  the  primitive  type.  Most 
patriarchal  communities  maintain,  alongside  their  new  An- 
cestor-Worship, which  may  be  described  as  their  working 
religion,  a  survival  of  the  older  Animism,  enshrined  in 
Nature-Worship.  The  most  striking  example  is,  perhaps, 

1  The  attractiveness  of  a  bright  light  is  not  realised  by  a  world 
accustomed  to  it  in  abundance.  But  let  any  one  watch  an  in- 
fant's eyes  fixed  upon  an  electric  bulb. 


68     THE   STATE   AND   THE   NATION 

the  beautiful  MYTHOLOGY  of  the  Greeks,  with  its  cult  of 
the  glade  and  stream,  and  its  gods  and  goddesses  who 
haunt  them — the  Fauns  and  Dryads  of  classical  poetry. 
Other  peoples  hold  by  a  religion  of  beast  and  bird,  which 
may  be  connected  with  the  totemism  (p.  25)  of  primitive 
times.  The  beautiful  fairy  lore  of  medieval  Europe  is 
another  example.  If  there  is  anything  in  theories  of  RACE, 
it  is  in  folk  and  fairy  lore  that  it  is  to  be  found;  not  in 
political  or  even  economic  institutions.  For  these  are  the 
product  of  adult  minds,  which  put  practical  considerations 
before  the  ties  of  blood;  while  folk  and  fairy  stories  are 
handed  on  from  mother  to  child  around  the  family  hearth. 

Turning  now  to  the  features  which  distinguish  patri- 
archal from  modern  religion,  we  find  an  equal  sharpness 
of  contrast. 

In  the  first  place,  every  modern  religion  claims  to  be 
UNIVERSAL.  "Go  ye  into  all  the  world,  and  preach  the 
gospel  to  every  creature,"  is  the  keynote,  not  only  of 
Christianity,  but  of  Mahometanism,  Confucianism,  and 
even  of  Buddhism;  though  the  method  of  each  is  different. 
No  new  religion  could,  at  the  present  day,  hope  for  success, 
if  it  did  not  offer  salvation  to  all  mankind,  even  though  it 
did  not  preach  a  panacea  for  all  evils.  That  is  why  the 
terrible  Calvinistic  doctrine  of  "predestination"  was  bound 
to  perish;  because  it  was  a  belated  survival  of  an  era  which 
was  passing  away.  How  can  you  hope  to  persuade  a  man 
to  accept  your  religion,  if  you  have  to  tell  him  that,  for  all 
you  know,  he  may  be  foredoomed  to  perdition?  Such 
a  religion  cannot  proselytise]  and  all  modern  religions  are 
proselytising  religions. 

Not  so  Ancestor- Worship.  The  notion  that  his  religion 
was  for  all  mankind  would  have  horrified  Patriarchal 
Man.  It  would  have  seemed  to  him  rank  sacrilege  that  an 
outsider  should  take  part  in  his  ancestral  rites,  or  "offer 
strange  fire"  upon  his  family  altar.  What  pleasure  could 
it  be  to  his  ancestor  to  receive  worship  from  men  of  alien 
blood,  who  owed  no  allegiance  to  his  ways,  who  had  never 
seen  his  ghost?  Only  when,  by  marriage  or  adoption,  the 


PATRIARCHAL    RELIGION  69 

stranger  had  been  absorbed  into  the  family  circle,  could 
he  or  she  be  permitted  to  share  in  its  mysteries.  When 
Ruth's  husband's  people  had  become  "her  people,"  then, 
and  not  till  then,  would  "their  God  become  her  God."  * 

It  followed,  as  a  natural  consequence  from  this  concep- 
tion of  Ancestor-Worship  as  the  private  affair  of  each 
tribe  or  clan,  that  its  rules  and  rites  were  guarded  with 
the  utmost  SECRECY  by  their  proper  custodians.  These 
would,  in  the  first  instance,  naturally  be  the  House  Fathers 
themselves,  each  in  his  separate  household;  while  the  Chief 
of  the  tribe  or  clan  would  be  its  natural  High  Priest.  The 
Priest-King  is,  in  effect,  a  recognised  feature  in  patri- 
archal society;  he  is  the  type  of  which  Melchizedek  of 
Salem,  and  Moses  and  Aaron  among  the  Hebrews,  are  ex- 
amples. But,  in  course  of  time,  the  inevitable  tendency 
towards  specialisation,  which,  as  we  have  seen,  was  already 
at  work  in  patriarchal  society,  led  to  the  appearance  of  a 
class  of  PRIESTS,  charged  with  the  special  care  of  the  sa- 
cred rites.  We  see  the  beginnings  of  such  a  movement 
in  the  consecration  of  the  sons  of  Aaron  to  the  priestly 
office;  2  and  we  know  of  the  existence  of  colleges  of  priests 
in  ancient  Rome.  Naturally,  the  growth  of  corporate  en- 
thusiasm produced  by  such  a  step  tended  to  make  the 
rites  of  a  tribe  or  clan  more  mysterious  than  ever;  in  their 
own  interests,  and  to  magnify  their  own  importance,  these 
priestly  colleges  guarded,  with  intense  jealousy,  the  secrets 
of  their  profession.  Some  of  the  deadliest  feuds  of  patri- 
archal society  were  caused  by  an  attempt,  on  the  part  of 
an  outsider,  to  penetrate  the  sacred  privacy  of  religious 
ceremonies.  Contrast  this  attitude  with  the  offer  of  "free 
salvation"  by  the  exponents  of  modern  religions,  and  the 
earnest,  in  some  cases  pathetic,  efforts  of  the  Churches  to 
increase  the  numbers  of  their  adherents. 

Finally,  patriarchal  religion  differed  from  modern  in  the 
fact  that  it  concerned  itself  little  with  THEOLOGY,  i.e.  with 
any  attempt  to  explain  the  origin  and  purpose  of  the  uni- 
verse, and  the  scheme  of  human  salvation.  It  was  sim- 
1  Ruth,  i.  16.  *  Exodus,  ch.  xxviii. 


70     THE   STATE   AND    THE   NATION 

ply  a  practical  guide  to  a  .course  of  conduct,  enforced  by 
picturesque  and  impressive  ceremonies.  Again  we  may  re- 
fer to  the  Hebrew  Scriptures,  one  of  the  best  possible  rec- 
ords of  patriarchal  history.  The  first  few  chapters  of 
Genesis  are,  indeed,  taken  up  with  an  attempt  at  cos- 
mogony, not  of  a  very  high  order;  but  the  author  or  au- 
thors seem  to  turn  with  relief  to  the  more  congenial  task 
of  relating  the  pedigrees  of  their  ancestors,  their  wander- 
ings and  adventures,  and  the  details  of  the  rites  and  cere- 
monies which  they  had  prescribed  for  their  descendants. 
In  all  this  they  were,  so  to  speak,  at  home;  and  the  in- 
terest which  they  put  into  this  part  of  their  work  at  once 
raises  its  quality  to  a  high  level.  If  the  higher  forms  of 
Animism  or  Nature-Worship  give  rise  to  imaginative  lit- 
erature, the  cult  of  deceased  ancestors  may  fairly  be 
claimed  as  the  origin  of  that  hardly  less  important  branch 
of  Art,  the  writing  of  History.  But  it  is  no  part  of  the 
business  of  Ancestor-Worship  to  explain  the  position  of 
Man  in  the  Universe,  the  destinies  of  the  human  race,  the 
purposes  of  a  Divine  Creator  of  the  World,  the  reconcilia- 
tion of  Divine  Justice  with  Divine  Pity,  the  conflict  be- 
tween Free  Will  and  Necessity,  or  any  of  the  deep  prob- 
lems which  it  is  the  task  of  theology,  or  religious  philoso- 
phy, to  explain.  A  Christian  writer  would,  naturally,  shrink 
from  the  accusation  of  irreverence  which  might  be  levelled 
against  him  if  he  were  to  speculate  openly  on  the  feelings 
likely  to  have  been  aroused  in  the  mind  of  a  Hebrew 
Prophet,  had  he  been  able  to  foresee  the  exposition  of  the 
Christian  revelation  by  its  Founder.  But  one  may,  at  least, 
be  permitted  to  surmise  the  expression  on  the  face  of  Moses 
or  Joshua,  if  he  could  have  read  the  elaborate  philosoph- 
ical arguments  of  the  Epistles  of  St.  Paul. 


CHAPTER  VI 

PATRIARCHAL  LAW 

IN  an  advanced  stage  of  society,  every  educated  person 
realises,  or  thinks  he  realises,  the  difference  between  re- 
ligion and  law.  Both  prescribe  rules  of  conduct;  but,  while 
the  rules  of  religion  are  attributed  to  a  divine  source,  and 
are  left  to  be  enforced  by  spiritual  sanctions,  the  rules  of 
law  are  believed  to  emanate  from  human  authority,  and  to 
be  enforced  by  human,  that  is  by  physical,  penalties.  Oc- 
casionally we  read  of  protests  by  unlettered  persons  in 
police  courts,  or  elsewhere,  followed  by  an  instructive  little 
discourse  on  the  difference  between  religion  and  law  by  the 
magistrate;  and  we  are  inclined  to  smile  at  the  simplicity 
of  the  protest  which  has  called  it  forth.  But  such  pro- 
tests are,  in  truth,  deeply  instructive;  for  they  are  but  sur- 
vivals of  a  state  of  mind  which  was  once  universal.  And 
they  show  how  difficult  it  still  is  for  many  people  to  per- 
form that  mental  process  to  which  we  have  before  alluded, 
to  wit,  the  analysis  which  distinguishes  between  the  dif- 
ferent elements  in  a  compound  substance  or  idea. 

Nor  is  the  difficulty  confined  to  simple-minded  persons. 
Even  the  educated  man,  who  happens  to  be  neither  a 
theologian  nor  a  trained  jurist,  is  often  puzzled  by  what  he 
conceives  to  be  a  confusion  of  boundaries  between  religion 
and  law.  He  is  faced  by  the  obvious  fact  that  a  very  large 
number  of  important  rules  are  common  to  both;  and  he  is 
inclined  to  doubt,  with  much  justice,  whether  the  term 
"law"  can  rightly  be  claimed  as  the  exclusive  property  of 
secular  tribunals,  such  as  police  and  county  courts.  He 
realises,  for  example,  that  the  precepts:  "Thou  shalt  do 
no  murder,"  "Thou  shalt  not  steal,"  "Thou  shalt  not  bear 


72     THE   STATE   AND   THE   NATION 

false  witness,"  are  common  both  to  religious  and  secular 
systems;  even  if  there  are  others,  such  as:  "Thou  shalt 
not  covet,"  which  are  peculiar  to  religion,  and:  "Thou 
shalt  not  omit  to  register  the  birth  of  thy  child,"  which  are 
peculiar  to  secular  law.1 

The  truth  is,  that  there  is  much  excuse  for  this  state  of 
bewilderment;  and  it  is  by  no  means  easy  to  find  a  test 
which  will  disperse  it  in  all  cases.  The  origin  of  the  diffi- 
culty is  obvious.  It  lies  in  the  fact  that,  as  we  have  seen, 
in  primitive  communities,  religion  and  law  are  the  same 
thing.  When  once  Primitive  Man  has  come  to  the  conclu- 
sion that  an  act  is  WRONG,  he  has  reached  the  end  of  his 
short  chain  of  reasoning.  To  ask  him  whether  it  was  forbid- 
den by  religious  or  by  secular  authority,  or  how  he  knew  it 
to  be  wrong,  or  why  it  should  be  wrong,  or  how  the  offender 
was  to  be  punished,  or  to  what  extent,  would  be  to  beat  the 
air.  These  are  questions  which  much  more  highly  devel- 
oped minds  have  been  long  struggling  to  solve,  by  no  means 
with  complete  success.  For  they  really  involve  an  under- 
standing of  that  complex,  mysterious,  and  yet  all-important 
thing,  human  society.  Wherefore  a  brief  attempt  to  an- 
swer these  questions  is  part  of  our  duty  in  this  book. 

Now  if  the  essence  of  religion  be  the  attempt  to  guide 
one's  life  by  conforming  to  a  standard  set  up,  or  believed 
to  be  set  up,  by  a  Power  Not  Ourselves,  it  is  unquestion- 
able that  religious  are  older  than  secular  laws.  It  may  well 
be  that,  in  primitive  communities,  individual  authority  is 
occasionally  exerted,  by  a  man  stronger  and  more  cunning 
than  his  fellows,  over  one,  or  even  a  few,  of  his  compan- 
ions. But,  in  absolutely  primitive  communities,  such  as 
those  of  the  Australian  aboriginals,  there  is  little  or  no  evi- 
dence of  such  a  state  of  things;  and  the  failure  to  compre- 
hend this  fact  was  responsible  for  a  good  many  amusing  in- 

1  There  is,  indeed,  a  school  of  theology  which  inculcates  as  a 
religious  duty  the  performance  of  all  obligations  of  the  secular 
law.  But  such  theology  is  illogical  and  dangerous.  The  true 
precept  is:  "Render  unto  Caesar  the  things  which  are  Cesar's," 
i.e.  not  religious  but  secular  obedience. 


PATRIARCHAL   LAW  73 

cidents  in  the  early  intercourse  between  the  aboriginals  and 
the  white  settlers,  in  which  the  former  showed  a  consider- 
able astuteness  in  taking  advantage  of  the  preconceived 
ideas  of  the  latter.1  In  any  case,  there  is  no  organised  or 
systematic  human  authority  which  can  claim  to  prescribe 
rules  of  conduct. 

But,  when  we  come  to  the  next  stage  of  progress,  the 
patriarchal,  there  is,  obviously,  a  great  change.  For  while, 
as  we  have  seen,  the  tribe  or  clan  believes  itself  to  be  bound 
by  rules  laid  down  by  its  deceased  ancestors,  who  have  al- 
ready passed  into  the  spirit  world,  there  is  a  good  deal 
more  "humanity"  (in  the  strict  sense  of  the  word)  about 
these  rules,  than  there  is  about  the  arbitrary  and  mysteri- 
ous prohibitions  of  Animism.  Moreover,  and  this  is  still 
more  important,  the  discipline  of  the  patriarchal  household, 
enforced,  without  appeal,  by  the  House  Father,  must  have 
tended  powerfully  to  establish  the  reign  of  human  author- 
ity. Here  we  have  the  germ  of  the  future  distinction  be- 
tween religious  and  secular  law.  Let  us  look  a  little  closer 
at  this  important  fact. 

The  admitted  ideal  of  Patriarchal  Man  was  conformity 
to  the  will  of  his  deceased  ancestors.  This  ideal  may  truly 
be  termed  religious;  and  by  it,  of  course,  the  House  Father, 
no  less  than  his  subordinates,  was  bound.  Doubtless,  in 
the  beginnings  of  the  system,  when  the  tradition  of  deceased 
ancestors  was  short  and  feeble,  the  restraints  on  the 
arbitrary  power  of  the  House  Father  were  slight;  in  fact, 
he  probably  acted,  within  his  domestic  circle,  pretty  much 
as  a  despot.  But  as  the  tradition  grew  and  strengthened, 
his  power  would  become  less  arbitrary,  more  regular, 
more  calculable — in  other  words,  more  like  law  and  less 
like  caprice.  Moreover,  as  the  single  pastoral  unit  ex- 
panded, by  the  process  previously  described  (p.  57),  into 
federated  groups  bound  together  by  the  reverence  to  a 

1  For  example,  when  it  was  realised  that  tobacco,  blankets,  and 
other  desirable  objects,  could  be  obtained  by  any  "chief"  who 
would  sign  a  treaty — i.e.  put  little  black  marks  on  paper — . 
"chiefs"  sprang  up  like  mushrooms. 


74     THE    STATE   AND   THE   NATION 

common  "eponymous"  ancestor,  or  actual  tribal  chief,  the 
pressure  of  the  common  tradition  upon  the  individual  House 
Father  would  become  stronger;  because  it  would  be  enforced 
by  the  opinion  of  neighbouring  units,  and,  possibly,  by 
the  common  action  of  his  kindred  patriarchs.  There  are 
significant  hints  in  Roman  Law,  for  example,  of  a  mys- 
terious process  known  as  "branding  with  infamy"  (notatio 
injamia},  not  open  to  the  ordinary  citizen,  but  performed 
by  a  religious  or  tribal  official,  as  a  public  duty.  It  was 
emphatically  a  matter  of  fas  (i.e.  speech,  especially  re- 
ligious speech),  as  opposed  to  jus,  or  secular  law;  and  the 
word  injamia  ("unspeakableness")  suggests  that  it 
took  the  form  of  exclusion  from  the  sacred  tribal 
rites. 

To  the  outside  world,  and  even  to  those  subordinate 
members  of  the  household  not  admitted  to  the  sacred 
mysteries  of  the  family  rites,  the  only  evidence  of  this 
ancestral  tradition  was  CUSTOM,  i.e.  the  long  continued 
course  of  similar  conduct  in  similar  circumstances.  The 
actual  origin  of  custom  is  to  be  found  rather  in  psychol- 
ogy than  in  religion  or  law.  It  is  probably  the  result, 
partly  of  imitativeness,  partly  of  laziness,  partly  of  intelli- 
gence, partly  of  caprice.  Men  will  take  a  particular  path 
because  it  is  the  easiest,  because  others  have  taken  it,  be- 
cause it  is  really  the  most  convenient,  because,  by  some 
chance,  it  is  attractive  at  the  moment.  But  the  men  who 
make  the  custom,  not  merely  originate  it,  are  the  imitative 
men,  the  men  who  conform  to  a  standard  already  laid  down, 
the  men  of  law,  that  is,  the  "law-abiding  men." 

Thus  we  see  Patriarchal  Law  starting  on  its  way,  sanc- 
tioned by  religion,  and  evidenced  or  interpreted  by  cus- 
tom. It  is,  as  has  been  said,  far  more  comprehensive  than 
the  old  primitive  code,  in  that  it  is  not  merely  nega- 
tive, but  includes  the  doing  of  acts,  or,  as  we  should  say, 
the  performance  of  positive  duties,  regularly  and  in  the 
proper  way.  It  is  possible  that  some  of  the  old  negative 
rules  of  the  primitive  period  survived,  being  really  founded 
on  reason.  But  most  of  them  were  discarded,  except  by 


PATRIARCHAL  LAW  75 

the  more  conservative  or  timid  members  of  the  community, 
as,  in  the  strictest  sense,  SUPERSTITIONS. 

But  we  have  now  to  ask  an  important  question,  or, 
rather,  two  questions.  By  whom,  and  how,  was  this  body 
of  custom  enforced?  And,  if  we  succeed  in  getting  the  right 
answers  to  these  questions,  we  shall  arrive  at  least  at  some 
idea  of  the  nature  of  Patriarchal  Law. 

The  answer  to  the  first  of  these  questions  is  simple.  The 
House  Father  was  always  the  judge  and  executioner  within 
the  limits  of  his  own  household.  No  outside  interference 
was  tolerated  by  him,  at  least  on  the  appeal  of  one  of  his 
own  subordinates.  One  of  the  greatest  dangers  of  modern 
statesmen  in  dealing  with  less  advanced  races  is  an  igno- 
rance of  this  fact,  and  the  passionate  depth  of  the  feeling 
behind  it.  It  may  well  be,  that  the  Romans  owed  much  of 
the  success  and  permanence  of  their  Empire  to  the  sym- 
pathy with  which  they  regarded  it.  At  any  rate,  their 
Oriental  and  barbarian  subjects  recognised  and  respected 
the  Roman  doctrine  of  patria  potestas.  At  least  on  one 
occasion,  British  authority  in  India  has  been  gravely  threat- 
ened by  a  real  or  apprehended  neglect  of  it.  Without  it, 
the  jus  vitce  necisque  (p.  54)  would  have  been  merely 
organised  caprice,  a  principle  wholly  foreign  to  the  intense 
legality  of  the  Roman  character.  Without  it,  the  respon- 
sibility of  the  House  Father  for  the  conduct  of  his  sub- 
ordinates towards  members  of  another  group  would  have 
been  impossible.  In  later  days,  as  we  shall  see,  this  prin- 
ciple came  into  sharp  conflict  with  another  of  even  greater 
authority  and  force;  and  that  conflict  is  one  of  the  real 
turning  points  in  the  world's  history.  But  that  time 
marked  the  death,  not  the  life,  of  patriarchalism. 

If  we  turn  now  to  the  second  branch  of  the  question,  and 
ask  how  the  decrees  of  this  domestic  judge  were  enforced, 
we  are  also  not  in  any  great  difficulty.  For  minor  offences, 
the  ordinary  punishments  of  domestic  discipline — whip- 
ping, deprivation  of  food,  restriction  of  liberty,  exclusion 
from  the  hearth — many  of  which  survive  to  the  present 
day,  would  be  sufficient.  For  graver  offences,  the  punish- 


76     THE   STATE   AND   THE  NATION 

ment  of  death  was,  undoubtedly,  inflicted;  but  a  common 
alternative,  more  merciful  in  appearance,  hardly  so  in 
reality,  was  that  of  BANISHMENT,  or  "emancipation"  as 
the  Romans  called  it,  which  expelled  the  offender  from 
his  paternal  household,  deprived  him  of  his  rights  of  heir- 
ship,  and  set  him  adrift  upon  the  world  a  broken,  or,  in 
the  expressive  language  of  the  Welsh  Laws,  a  "kin- 
shattered,"  man.  Originally  this  process  (which  may  have 
been  remotely  connected  with  the  "taboo"  [p.  31]  of  the 
primitive  era)  must  have  usually  meant  death  by  slow 
starvation  or  the  attacks  of  foes.  Later  on,  as  adult  sons 
began  to  revolt  against  the  restraints  of  the  paternal  au- 
thority, it  did,  undoubtedly,  come  to  be  looked  upon 
as  a  boon.  The  Twelve  Tables,  in  a  famous  passage,1 
offer  it  as  a  consolation  to  the  son  who  had  been  three  times 
sold  as  a  bondsman  by  his  unfeeling  House  Father.  But 
the  indelible  mark  of  its  original  disgrace  survived  in  the 
rule  of  Roman  Law  that  emancipatio,  with  whatever  ob- 
ject performed,  involved  capitis  deminutio,  or  loss  of 
status;  and  the  Imperial  State  ultimately  placed  restric- 
tions upon  it. 

Still,  however,  we  should  do  wrong  to  assume,  that  the 
House  Father  was  subject  to  no  internal  restraint  in  the 
exercise  of  his  authority,  or  to  underestimate  the  influ- 
ence of  such  restraint  as  existed,  merely  because  it  was,  to 
modern  eyes,  indefinite.  It  was  the  CUSTOM  itself,  which, 
with  ever-tightening  grip,  held  both  judge  and  accused  in 
its  bond.  Where  the  offence  was  against  the  authority  of 
the  House  Father  himself,  the  chances  of  a  successful  ap- 
peal to  the  custom  would,  we  should  think,  be  small; 
though,  possibly,  the  attitude  of  his  kindred  potentates, 
or  the  tribal  Chief,  may  have  acted  as  a  kind  of  primitive 
Court  of  Appeal.  But  there  is  a  very  forcible  warning 
against  such  a  belief  in  the  well-established  fact,  that  the 
manorial  court  of  the  later  Middle  Ages,  at  any  rate  in 
England,  though  presided  over  by  the  lord  or  his  steward, 
with  whose  decisions  there  could  be  no  outside  interfer- 
1  Si  pater  filium  ter  venum  duit,  liber  esto. 


PATRIARCHAL  LAW  77 

ence,1  did  in  substance  succeed  in  upholding  the  customary 
rights  of  the  copyhold  tenants  for  centuries  against  their 
lords,  without  the  aid  of  such  interference.  The  history 
of  the  English  manorial  courts,  with  their  "homage"  or 
body  of  tenants  which  "declared  the  custom,"  gives  us  an 
instructive  hint  as  to  how  this  success  was  achieved;  and 
we  shall,  probably,  not  be  far  wrong  in  assuming  that  the 
domestic  tribunal  of  patriarchal  days  comprised  not  merely 
the  patriarch,  but  a  panel  of  adult  sons,  who,  in  the  lan- 
guage of  slightly  later  days,  "deemed  the  dooms,"  i.e.  ex- 
pressed the  rules  of  that  custom  by  which  even  the  House 
Father  was  bound. 

Where  the  offence  alleged  was  not  against  the  authority 
of  the  House  Father,  but  against  the  interest  of  another 
subordinate  member  of  the  household,  the  difficulty  would 
be  far  less.  In  deciding  such  a  dispute,  the  authority  of 
the  House  Father  would  not  be  involved;  unless,  of  course, 
which  is  unlikely,  one  of  the  parties  to  it  refused  to  be  bound 
by  his  decision.  That  would  be  a  case  of  "contempt  of 
court,"  which,  as  we  shall  later  see,  is  a  contingency  which 
all  tribunals  have  to  meet.  But,  in  the  ordinary  way,  the 
overwhelming  authority  of  the  House  Father  would  pre- 
vail ;  and  he  would  merely  be  concerned  to  see  which  of  the 
parties  was  in  the  right,  or,  as  the  older  phrase  ran,  "had 
right."  He  would  then  make  an  award,  adjusting  the  dis- 
pute; and  the  matter  would  be  at  an  end. 

In  the  distinction  between  these  two  classes  of  offences, 
we  can  see  the  germ  of  a  distinction  which  is  afterwards  to 
become  famous — the  distinction  between  CRIMINAL  and 
CIVIL  justice.  The  former  aims  at  repressing  a  defiance  of 
authority;  the  latter  at  adjusting  rival  claims  between  two 
parties,  which  may  not  involve  any  moral  guilt  at  all. 
The  method  of  the  tribunal  in  the  former  case  is  PUNISH- 

1  Until  the  fifteenth  century,  at  least,  the  copyholder,  or  serf 
tenant,  could  not  claim  the  protection  of  the  King's  courts  for 
his  holding. 


78     THE   STATE   AND   THE   NATION 

MENT,1  in  the  latter,  COMPENSATION.  The  party  in  the 
wrong  is,  in  the  latter  case,  merely  ordered  to  make  good 
the  loss  caused  to  the  other  by  his  wrongful  act.  It  is  true, 
that  such  a  wrongful  act  may  have  also  involved  moral 
guilt;  and,  as  we  shall  see  later,  developed  systems  of  law 
make  further  subdivisions  between  civil  cases  which  are 
merely  honest  differences  of  opinion  about  proprietary  and 
contractual  rights,  and  those  which  are  based  on  such 
wrongs  as  defamation,  cheating,  and  so  on.  Again,  it  is 
true  that,  just  as  the  same  act  may  be  at  the  same  time 
an  offence  against  religion  and  an  offence  against  law,  so 
it  may  also  be  a  crime  and  a  civil  wrong.  But  this  fact 
does-  not  prevent  the  distinction  being  of  importance  in 
the  development  of  institutions. 

If  we  turn  now  to  ask,  on  what  principle  the  House 
Father  would  adjust  the  disputes  which  arose  between  his 
subordinates,  we  find,  again,  that  the  test  is,  at  least  in 
many  cases,  CUSTOM.  The  individual  who  has  suffered  by 
the  breach  of  a  custom  claims  redress  against  the  breakei. 
Thus,  the  man  who  has  been  accustomed  to  ride  a  partic- 
ular horse  from  the  common  stable,  will  resent  the  use 
of  that  horse  by  another  member  of  the  household.  The 
woman  who  has  been  in  the  habit  of  wearing  a  particular 
garment,  will  resent  its  appropriation  by  another.  In  each 
case,  though  the  horse  or  the  garment  may  be,  in  theory, 
the  goods  of  the  House  Father,  in  the  sense  that  he  can 
dispose,  of  them,  at  any  rate  within  the  household,  as  he 
pleases,  yet  the  fact  that  the  person  who  has  used  them 
has  acquired  an  interest  in  them,  gives  him  a  RIGHT  to 
complain  if  that  interest  is  interfered  with.  He  is  "in  his 
right"  in  complaining;  and  the  community  will  approve 
his  complaint.  This  is,  undoubtedly,  one  of  the  avenues 
which  lead  to  the  later  conception  of  PROPERTY.  Other 
cases  are  not  quite  so  clear.  On  what  ground  does  a  man 
complain  of  an  assault,  or  a  slanderous  utterance,  or  a 
wrongful  restraint  of  physical  liberty?  No  question  of 

1  The  object  (or  purpose)  of  punishment  is  another  and 
deeper  question,  which  we  cannot  discuss  here. 


PATRIARCHAL  LAW  79 

interest  may  seem  to  be  involved,  no  custom  violated.  In 
a  sense,  one  may,  of  course,  say  that  a  man  has  an  "in- 
terest" in  the  security  of  his  body,  or  the  goodness  of 
his  reputation,  or  the  freedom  of  his  person;  and,  in  later 
days,  such  a  use  of  the  word  does,  undoubtedly,  become 
common,  and  such  offences  as  assault,  defamation,  and 
false  imprisonment  are  made  the  basis  of  civil  proceed- 
ings. But  this  is  a  refinement  hardly  arrived  at  in  patri- 
archal times.  Again,  one  can  hardly  describe  such  offences 
as  breaches  of  custom.  All  the  evidence  goes  to  show  that, 
in  early  days,  assaults  and  vituperation  were  extremely 
common. 

As  a  matter  of  fact,  Patriarchal  Law  treats  such  offences 
with  considerable  indifference.  Its  attitude  appears  rather 
to  be,  in  the  case  of  a  blow:  "Give  him  another"  ("An 
eye  for  an  eye,"  "A  tooth  for  a  tooth") ;  in  the  case  of  a 
slander:  "Call  him  the  same";  in  the  case  of  "false  im- 
prisonment": "Get  out  the  best  way  you  can."  Only  when 
the  assault  is  so  serious,  or  the  abuse  so  gross,  or  the  in- 
carceration so  prolonged,  as  to  threaten  the  peace  of  the 
community,  does  the  law  step  in;  and  then  it  is  as  a  prose- 
cutor or  a  magistrate,  rather  than  as  an  arbitrator  be- 
tween disputants — in  other  words,  it  treats  the  offence  as  a 
crime,  rather  than  a  civil  injury.  The  offence  so  famil- 
iarly known  to  modern  tribunals  as  "breach  of  contract," 
is  a  quite  late  development  of  legal  ideas;  and,  when  it 
comes,  it  comes  by  way  of  a  rather  curious  extension  of 
the  idea  of  property. 

It  is,  probably,  not  until  the  later  period  of  the  patri- 
archal stage  has  been  reached,  and  the  adoption  of  agri- 
culture (Ch.  VII.)  and  the  growth  of  industry  (Ch.  VIII.) 
have  changed  the  simpler  conditions  of  pastoral  life,  that 
we  get  anything  like  an  ordered  PROCEDURE  for  the  pun- 
ishment of  crimes  or  the  enforcement  of  rights.  If  we  put 
aside  the  curious  Oriental  process  known  as  "sitting 
dharna"  in  which  the  complainant  plants  himself  at  the 
door  of  the  offender's  tent  or  hut,  and  threatens  to  starve 


80     THE   STATE   AND   THE   NATION 

himself  if  the  latter  will  not  come  before  the  tribunal,1  we 
see  only,  as  regular  proceedings,  the  "distress,"  or  nam  (as 
the  Teutonic  Laws  call  it),  and  the  blood  feud. 

The  DISTRESS,  as  its  name  implies,  is  a  method  of  put- 
ting pressure  upon  the  offender;  and  the  method  consists 
in  seizing  his  goods,  not  by  way  of  compensation,  but  to 
make  the  offender  come  before  the  judgment  seat,  and  hear 
the  "doom."  The  idea  is  childlike  in  its  simplicity.  "You 
have  taken  my  rabbit.  I  shall  seize  all  your  toys  till  you 
give  it  up."  Counter-recrimination  naturally  follows;  a  dis- 
turbance arises,  and  authority  must  intervene.  If,  how- 
ever, the  person  whose  goods  have  been  "distrained"  re- 
mains obstinate,  and  prefers  to  put  up  with  the  inconven- 
ience rather  than  face  the  tribunal,  apparently  there  is  no 
other  remedy;  and  it  was  to  this  defect,  more  than  any- 
thing else,  that,  as  we  shall  later  see,  patriarchal  justice 
owed  its  supersession  by  a  more  rigorous  authority,  armed 
with  sheriffs  and  other  executive  officers. 

The  process  known  as  the  BLOOD  FEUD,  widely  spread 
all  over  the  world,  marks,  probably,  a  much  later  period 
in  the  patriarchal  stage,  when  the  unity  of  the  tribe  had 
been  destroyed  by  the  settlement  of  sub-groups  in  more 
or  less  isolated  villages  or  kraals,  whose  inhabitants  raided 
the  cattle  of  neighbouring  villages,  or  murdered  the  casual 
farmer  or  herdsman  who  strayed  beyond  his  protecting 
stockade.  The  kinsmen  of  the  victim,  or  the  owners  of  the 
cattle,  would  "follow  the  trail"  of  the  murderer  or  the 
stolen  beasts,  until  it  led  to  the  offender's  hut.  At  first, 
no  doubt,  a  general  fight  ensued;  but,  as  the  consequences 
of  indiscriminate  bloodshed  became  apparent,  this  disor- 
derly scrimmage  was  superseded  by  an  intervention  on  the 
part  of  the  elders  of  the  invaded  village,  who  "stayed  the 

1  The  implied  threat  is,  that  the  ghost  of  the  dead  complainant 
will  haunt  the  offender.  The  unimaginative  Western  mind  seems 
to  have  invented  nothing  to  correspond  with  this  curious  process. 
See,  however,  the  horrible  West  African  practice  known  as 
"throwing  a  face"  on  a  victim  of  sorcery,  described  by  Miss 
Kingsley  (West  African  Studies,  pp.  165-6),  which  may  be  in 
the  same  line  of  ideas. 


PATRIARCHAL  LAW  81 

feud," 1  and  offered  compensation  if  guilt  could  be  proved. 
Thus  we  get  the  system  of  blood  and  theft  fines — the 
wergild  of  the  Teutons,  the  cro  of  the  Scots,  the  eric  of 
the  Irish,  the  galanas  of  the  Welsh — of  which  the  patri- 
archal codes  are  full.  Quite  possibly  it  is  to  this  change,  as 
much  as  to  anything  else,  that  we  owe  the  drawing  up  of 
those  precious  monuments  of  Patriarchal  Law;  at  any  rate, 
some  of  the  very  earliest  of  them  read  almost  like  a  tariff 
of  fines.2  Almost  all  of  them  permit  the  killing  in  hot 
blood  of  the  murderer  or  thief  caught  red-handed — the  mur- 
derer seized  with  the  bloody  knife  in  his  possession,  the 
thief  overtaken  with  the  ox  in  his  halter  or  the  sheep  on 
his  back.  But  if  the  trail  merely  leads  to  a  hut  or  stable, 
then  search  (with  due  precautions  against  trickery)  must 
be  permitted;  and,  if  the  stolen  article  is  found,  the  claim- 
ant lays  his  hand  solemnly  upon  it,  and  claims  it  in  sol- 
emn speech. 

Now  comes  the  chance  of  the  cool-headed  elders  of  the 
invaded  village.  Inviting  the  parties  to  come  before  them 
at  the  moot-stow,  the  ancient  assembling-place  of  the  town- 
ship, they  then  hear  the  accusation  of  the  invaders,  which 
the  accused  must  deny  word  for  word,  or,  as  the  old 
English  Laws  put  it,  with  a  twert-ut-nay.  Thereupon  the 
elders  "deem  a  doom";  that  is,  they  name  the  proper 
fine  for  the  alleged  offence,  the  party  on  whom  the  bur- 
den of  proof  rests,  and  the  nature  of  the  evidence  required 
by  the  facts.  And  they  also  "set  a  day"  for  the  trial,  un- 
less, indeed,  they  dismiss  the  accusation  as  frivolous,  or 
as  disclosing  no  offence,  whereupon  the  accused  "goes  with- 
out day." 

It  is,  perhaps,  needless  to  say,  that  patriarchal  tribunals 
have  what  would  appear  to  us  to  be  very  primitive  notions 
about  the  nature  of  EVIDENCE  or  proof.  Doubtless,  as 

1  One  of  the  most  persistent  survivals  of  this  step  is  the  prac- 
tice of  urging  two  quarrelsome  persons  to  "shake  hands" ;  for  if 
the  right  hands  are  clasped,  neither  party  can  well  use  his  weapon. 

2  Thus   the   oldest   monument   of    English   law,   the   Laws   of 
^Ethelbert  of  Kent,  opens  with  the  words :     "God's  cattle  and 


82     THE   STATE   AND    THE   NATION 

things  develop  a  little,  and  especially  as  the  introduction 
of  barter  and  sale  renders  it  no  longer  safe  to  assume  that 
a  man  found  with  an  ox  known  to  have  once  belonged  to 
another  man  is  necessarily  a  thief,  we  get  something  like 
modern  evidence,  in  the  transaction-witnesses  of  the  mar- 
ket-place— men  whose  very  existence,  however,  shows  the 
jealousy  with  which  alleged  transfers  of  ownership  are  re- 
garded. But  the  older  rules  of  Patriarchal  Law  on  the 
subject  of  evidence  are  simple  and  uniform  in  principle, 
though  varying  in  detail  from  tribe  to  tribe.  If  the  ac- 
cused is  of  fair  fame,  he  "wages  his  law"  (as  the  English 
codes  put  it),  i.e.  he  brings  a  number  of  his  kinsmen  or 
neighbours  to  swear  that  he  is  innocent.  This  they  do  in 
solemn  unison,  with  uplifted  hands  and  voices,  in  a  solemn 
formula.  If  the  accused  is  of  evil  repute,  he  "goes  to  the 
ordeal,"  i.e.  by  some  rude  test  he  appeals  to  the  Unseen 
Powers  to  slay  him  if  he  is  not  speaking  the  truth.  "May 
this  choke  me  if  I  lie,"  recalls  the  ancient  ordeal  of  the 
corsned  or  test  by  swallowing,  so  widely  spread;  *  "going 
through  fire  and  water"  dates  from  the  familiar  ordeals  of 
walking  blindfold  over  ground  strewn  with  red-hot  plough- 
shares, and  plunging  the  arm  into  boiling  water.2  If  the 
accused  fails  at  the  ordeal,  he  is  abandoned  to  the  ven- 
geance of  his  accusers,  or  pays  the  fine. 

The  system  has,  however,  one  weak  spot.  It  is  clear  from 
all  the  records  that,  in  spite  of  its  manifest  advantages 

the  Church's  twelve-fold  fine.  Bishop's  cattle,  eleven-fold  fine. 
Priest's  cattle,  nine-fold  fine.  Deacon's  cattle,  six-fold  fine. 
Clerk's  cattle,  three-fold  fine.  Church  peace,  two-fold  fine.  Court 
peace,  two-fold  fine."  And  so  on. 

1  The  corsned  is  Teutonic.  But  the  idea  was  reproduced  among 
the  Jews  (Numbers,  v.  11-31) ;  and  "swallowing  the  bean" 
is  the  recognised  way  of  repelling  a  charge  of  witchcraft  in 
West  Africa  (West  African  Studies,  p.  160). 

3  The  well-known  practice  of  flinging  a  woman  accused  of 
witchcraft  into  a  pond  is  another  form  of  the  water  ordeal.  If 
she  floated,  she  was  supposed  to  be  supported  by  her  familiar 
spirit,  and  condemned.  If  she  sank,  it  was  a  proof  of  inno- 
cence. Anyway,  she  was  got  rid  of. 


PATRIARCHAL   LAW  83 

over  violent  self-help,  there  appears  to  be  no  authority 
which  can  enforce  it  against  unwilling  disputants,  or  com- 
pel the  offender  to  pay,  or  the  accusers  to  accept,  the  fine, 
if  the  former  cannot  or  will  not,  or  the  latter  will  not,  obey 
the  doom.  In  either  of  these  cases,  the  feud  goes  on;  and 
the  efforts  of  the  peacemakers  are  directed  to  modifying 
its  bitterness,  by  appointing  SANCTUARIES,  or  cities  of  ref- 
uge,1 by  fixing  certain  days  as  "peace"  or  "truce"  days, 
by  requiring  warning  of  an  attack  to  be  given,  above  all, 
by  strictly  limiting  the  degrees  of  kindred  entitling  rela- 
tives to  take  part  in  the  feud.  But  all  this  leads  us  to 
suppose  that  the  feud  was  rather  a  procedure  for  settling 
disputes  between  rival,  though,  possibly,  connected  groups, 
than  between  individuals  within  a  single  group,  and  un- 
der the  unquestioned  control  of  a  single  authority.  It  was, 
in  fact,  a  species  of  limited  warfare;  and  the  inability  to 
stamp  it  out  was  the  great  failure  of  patriarchal  justice, 
which  led,  as  we  shall  later  see,  to  the  supersession  of 
patriarchal  by  more  effective  tribunals. 

We  return,  in  ending  this  chapter,  to  the  point  from 
which  it  started,  viz.  the  close  connection  between  Patri- 
archal Religion  and  Patriarchal  Law.  One  of  the  most 
striking  proofs  of  this  intimacy  is  the  fact  that,  in  patri- 
archal times,  law,  like  religion,  is  not  a  question  of  locality, 
but  of  birth.  The  fact  that  a  man  had  become  separated 
from  his  tribe  or  clan,  did  not,  necessarily,  deprive  him  of 
his  right  to  be  judged  by  its  law,  any  more  than  it  neces- 
sarily deprived  him  of  the  right  to  share  in  its  religion.2 
In  the  break-up  of  tribal  communities  which  followed  the 
irruptions  of  the  barbarian  hosts  into  Western  Europe  at 

1  Joshua,  ch.  xxi.  Observe  (i)  that  these  cities  were  originally 
among  those  allotted  to  the  priestly  tribe  of  Levi  (Numbers,  xx. 
6),  and  (2)  that,  even  in  a  later  stage,  they  were  only  for  the 
man  who  had  slain  another  by  inadvertence  (Joshua,  xx.  3). 

1  Of  course  this  rule  did  not  apply  to  the  banished  or  "out- 
lawed" man  (p.  76)  ;  and  there  was,  among  the  Romans,  a  well- 
known  ceremony  by  which  intending  colonists,  on  the  eve  of 
their  emigration,  renounced  their  tribal  gods  (detestatio  sacro- 
rum). 


84     THE   STATE   AND    THE   NATION 

the  fall  of  the  Roman  Empire,  this  rule  was  long  pre- 
served. A  Burgundian  could  claim  to  be  judged  by  Bur- 
gundian  Law,  a  Visigoth  by  Visigothic  Law,  and  so  on.  So 
also  was  it  in  England  before  the  Norman  Conquest ;  though 
fusion  had  begun  there.  So  it  is,  to  a  large  extent,  in  India 
at  the  present  day.  Even  though,  in  Western  Europe,  the 
rich  heritage  of  Roman  Law  offered  an  asylum  for  the  men 
of  different  systems,  it  was  long  before  it  became  a  "com- 
mon" or  universal  law.  Even  in  England,  small  as  it  is, 
and  well  governed,  the  "common  law"  dates,  at  the  earliest, 
from  the  thirteenth  century.  In  early  days  there  is  no 
universal,  or  even  territorial,  law;  any  more  than  there  is 
any  universal  or  territorial  religion. 

It  is,  however,  just  these  facts  which  seem  to  give  us  a 
hint  towards  the  solution  of  the  difficult  problem:  How  or 
why  does  Law  finally  separate  itself  from  Religion?  The 
answer  is,  in  brief,  because  it  ultimately  becomes  necessary 
to  find  a  common  standard  of  justice  among  men  who  belong 
to  different  religions.  For  long  the  priestly  colleges  at 
Rome  held  the  secrets  of  law  in  their  hands;  and  the  Jew- 
ish Rabbi  is  still  the  Jewish  judge.  For  long  even  a  uni- 
versal religion  like  Christianity  maintained  a  hold  over 
law  by  its  conduct  of  the  system  of  ordeals  and  oaths;  and, 
even  at  the  present  day,  in  Mahometan  countries,  the  func- 
tions of  priest  and  judge  are  combined  in  the  same  per- 
son. But  there  comes  a  time,  in  most  communities,  when 
the  widening  intercourse  of  peoples  brings  into  close  re- 
lationship men  of  different  faiths,  and  renders  it  necessary 
to  frame  rules  of  conduct  to  which  all  shall  conform,  in 
matters  not  directly  affecting  their  religious  beliefs.  As  to 
where  exactly  the  line  of  demarcation  in  such  matters  shall 
be  drawn,  there  will,  naturally,  be  fierce  disputes;  because, 
after  all,  religion  affects  all  conduct,  and  men  will  dispute 
fiercely  as  to  which  authority  shall  prevail,  the  religious 
or  the  secular,  on  certain  matters.  This  is  the  secret  of 
the  long-drawn-out  struggle  between  Church  and  State. 
But,  just  as  the  influx  of  the  provincials  into  Rome  forced 
the  hands  of  the  priestly  colleges,  and  produced  the  jus 


PATRIARCHAL   LAW  85 

gentium  or  secular  law,  with  its  own  tribunals,  its  own  rules, 
and  its  own  methods;  just  as  the  welding  of  the  English 
tribes  into  a  single  nation  produced  the  "common  law," 
and  its  corresponding  apparatus — so,  everywhere  in  pro- 
gressive communities,  the  line  between  Religion  and  Law 
becomes  clearer  and  clearer,  though  not  without  many 
struggles,  many  disputed  fields  of  conduct,  and  much  over- 
lapping of  claims,  of  which  the  "conscientious  objector" 
is  a  living  symbol.  But  the  mention  of  the  STATE,  a  con- 
ception of  which  we  have,  as  yet,  seen  no  sign  in  our  ac- 
count of  the  development  of  institutions,  warns  us  that  a 
thorough  analysis  of  the  problem  must  await  a  later  stage 
of  our  enquiry. 


CHAPTER  VII 

THE  INTRODUCTION  OF  AGRICULTURE 

HITHERTO  we  have  assumed,  save  in  special  cases,  that  the 
normal  character  of  patriarchal  life  is  PASTORAL,  i.e.,  de- 
pendent on  the  process  of  cattle-  and  sheep-breeding,  and 
its  allied  industries.  This  practice  is  justified  by  the  fact, 
that  the  discovery  and  adoption  of  this  process  marks  (as 
we  have  tried  to  show)  a  distinct  advance  in  social  organisa- 
tion, and  stamps  upon  that  organisation  a  character  which 
it  retains,  in  most  cases,  for  long  ages.  Thus,  we  have 
deemed  it  convenient  to  analyse  this  organisation  with 
some  care,  before  proceeding  to  describe  later  economic 
developments  which  were  afterwards  fitted  into  it.  For  ' 
these  later  economic  developments,  though  they  modified 
the  application  of  the  pastoral  system,  did  not,  for  a  long 
time,  destroy  it  entirely,  or  root  out  the  principles  on  which 
it  was  organised.  Thus  we  seem  to  be  justified  in  treat- 
ing of  these  later  developments  under  the  head  of  Patri- 
archal Society;  though,  in  fact,  they  contained  within  them- 
selves the  germs  of  forces  which  were  destined  ultimately 
to  supersede  patriarchal  principles.  The  two  later  devel- 
opments with  which  we  have  now  to  deal  are  AGRICULTURE 
and  CRAFTSMANSHIP.  And  first  of  agriculture,  i.e.,  the 
process  which  seeks  to  satisfy  the  economic  needs  of  soci- 
ety by  tilling  the  soil,  planting,  and  reaping. 

Even  if  we  did  not  know  it  for  a  fact,  we  might  have 
conjectured  that  agriculture  comes  later  than  pastoralism 
in  the  normal  scheme  of  progress.1  Agriculture,  even  in  its 

*A  vivid  example,  from  quite  modern  times,  is  to  be  found  in 
the  economic  history  of  white  Australia.  When  the  little  Gov- 
ernment settlements  at  Port  Jackson  and  Sydney  burst  their 

86 


INTRODUCTION  OF  AGRICULTURE  87 

earlier  and  ruder  phases,  demands  so  much  more  patience, 
foresight,  self-denial,  and,  above  all,  hard  physical  toil — 
qualities  by  no  means  characteristic  of  early  Man — that  we 
might  have  been  pretty  sure  that  it  would  not  have  been 
adopted  except  under  pressure.  What  was  the  nature  of 
that  pressure? 

Surely  nothing  else  but  the  primeval  cravings  of  man — 
hunger  and  thirst.  Pastoral  pursuits  suffer  still  (and  in 
their  early  stages  suffered  still  more)  from  three  great  draw- 
backs. In  the  first  place,  they  are  liable  to  sudden  visi- 
tations of  MURRAIN  or  RINDERPEST,  and  DROUGHT,  which 
sweep  away  vast  flocks  and  herds,1  leaving  the  communi- 
ties which  have  depended  upon  them  face  to  face  with 
starvation.  In  the  second,  this  danger  is  intensified  by 
the  fact,  that  it  is  difficult  to  provide  against  it  by  ac- 
cumulating great  stocks  of  reserves  in  a  form  which  will 
enable  these  communities  to  defy  it.  If  we  turn  to  the  in- 
structive story  of  Pharaoh's  dream,2  we  shall  find  that  the 
famine  predicted  by  Joseph  attacked  both  the  KINE  and 
the  CORN.  But  there  was  no  attempt  to  guard  against 
it  by  making  a  reserve  of  cattle;  the  utmost  that  could 
be  hoped  for,  obviously,  was  to  keep  alive  the  existing 
stocks  out  of  the  reserves  of  com  stored  up  by  Joseph's 
plan.  And  the  natural  result  of  the  contrast  was  the  des- 
perate resort  to  Egypt  of  the  purely  pastoral  communities 
which  surrounded  her.3 

In  the  third  place,  the  very  success  of  pastoral  pursuits, 
whilst  it  lasts,  tends  to  produce  ultimate  catastrophe,  by 

bonds,  and  became  free  communities,  the  first  spontaneous  eco- 
nomic development  was  the  great  "squatting"  industry  of  the 
interior  plains.  Then  came  the  "selector,"  demanding  land  for 
the  plough ;  finally,  the  craftsman  of  the  towns. 

1  The  history  of  Australia  again  illustrates  vividly  this  danger. 
In  a  good  season  a  "squatter's"  stock  may  be  worth  £100,000. 
After  a  single  season  of  drought,  it  may  be  worth  next  to 
nothing. 

*  Exodus,  ch.  xli. 

8  "Thy  servants  are  shepherds,  both  we,  and  also  our  fathers" 
(Exodus,  xlvii.  3). 


88     THE   STATE   AND    THE   NATION 

stimulating  the  growth  of  population,  and  thus  threatening 
the  appearance  of  that  familiar  spectre  which  haunts  the 
imagination  of  all  economists,  the  "pressure  of  popula- 
tion on  the  means  of  subsistence."  We  can  easily  see  how 
this  would  be  so,  even  if  we  were  not  familiar  with  the 
stories  of  large  patriarchal  families,  and  patriarchal  longev- 
ity. The  improvement  caused  by  it  in  the  conditions  of 
life  would  gradually  increase  the  rate  of  reproduction 
(very  slow  in  really  primitive  communities),  and  lengthen 
the  average  duration  of  human  life;  while  the  desire  to 
accumulate  labour,  would,  as  we  have  seen,  result  in  the 
sparing  of  captives  and  deliberate  breeding  from  them. 
Over  against  this  danger,  it  is  particularly  to  be  noted, 
that  pastoral  pursuits  are  extravagant  in  their  methods. 
Of  course  there  is  no  such  thing  as  stall-feeding,  much  less 
"soiling,"  in  early  times;  because  the  materials  for  such 
processes  are  not  forthcoming.  The  flocks  and  herds  are 
led  about  in  the  summer  and  winter  pastures,  cropping 
the  wild  grass  and  eating  the  land  bare  till  the  return  of 
spring  brings  fresh  food.  There  is  no  season  of  "autumn" 
under  pastoral  auspices.  At  the  approach  of  winter,  a 
large  part  of  the  cattle  and  sheep  have  to  be  killed  and 
salted  for  human  food;  only  sufficient  numbers  for  breed- 
ing can  with  difficulty  be  kept  alive,  even  in  favoured 
countries,  on  such  store  of  wild  edible  roots  as  can  be 
collected,  or  some  scanty  provision  of  bracken  or  primi- 
tive hay.  It  has  been  calculated  by  an  eminent  econo- 
mist, who  spent  a  long  life  in  the  study  of  the  original 
conditions  of  land-settlement  in  Europe,  that  an  area  de- 
voted to  agriculture  will  feed  at  least  four  times  the  num- 
ber of  people  who  could  be  maintained  on  the  produce  of 
a  sheep-  or  cattle-run  of  the  same  size.  It  is  probable  that 
recent  scientific  discoveries  in  agriculture  have  even 
heightened  this  contrast.  As  a  very  picturesque  phrase 
of  the  Irish  Book  of  the  Abbey  of  Clonmacnoise  puts  it, 
speaking  of  the  seventh  century  A.D.,  and  the  substitution 
of  agriculture  for  pasturage:  "Because  of  the  abundance 
of  the  households  in  their  period"  (i.e.,  of  the  sons  of  Aed 


INTRODUCTION  OF  AGRICULTURE  89 

Slane),  "therefore  it  is  that  they  introduced  boundaries  in 
Ireland." 1  In  these  facts  we  can,  with  much  probability, 
see  the  motives  which  ultimately  led,  in  progressive  com- 
munities, to  the  supersession  of  pastoral  pursuits  by  agri- 
culture. 

But  if  we  ask  another  equally  interesting  question:  How 
was  agriculture  discovered?  we  are,  as  in  the  similar  prob- 
lem of  the  domestication  of  wild  animals  (pp.  37-40), 
thrown  back  on  intelligent  conjecture;  and,  as  the  prob- 
lem is  not  directly  in  our  task,  we  must  not  spend  much 
time  upon  it. 

As  in  the  case  of  the  earlier  problem,  the  materials  were 
there;  it  was  only  a  question  whether  human  intelligence 
could  utilise  them.  Just  as  even  Primitive  Man  knew  that 
some  wild  beasts  were  good  for  food,  so  he  knew  that  some 
wild  fruits,  seeds,  and  roots  had  a  similar  quality.  What 
he  did  not  know  was,  how  the  slow  reproduction  of  Na- 
ture could  be  stimulated  and  improved  by  human  effort. 
One  theory  suggests,  that  the  offering  of  seeds  and  fruits  as 
sacrifices  (pp.  32,  64)  to  fetish-gods  or  deceased  ancestors 
might  have  led  to  the  discovery,  as  the  seeds  and  fruits, 
left  on  the  ground,  sprouted  and  grew  into  corn  and  trees. 
Another  suggestion  is,  that  a  store  of  wild  yams  or  other 
roots  might,  in  a  damp  winter,  be  found  to  have  taken 
root  and  multiplied.  The  lesson  would  not  be  lost  on  the 
more  quick-witted  observers;  and  the  prospect  of  such  a 
welcome  addition  to  the  store  of  food  would  encourage 
efforts  to  repeat  it.  In  all  probability,  agriculture  was 
practised  as  a  "by-industry"  in  many  cases  before  a  com- 
munity had  ceased  to  place  its  main  reliance  upon  cattle- 
and  sheep-breeding;  and  this  may  be  our  starting-point 
for  a  brief  examination  of  the  early  stages  of  agriculture. 

1  The  late  Mr.  Seebohm,  the  eminent  economic  historian,  took 
this  passage  to  refer  to  the  transition  from  common  to  individual 
farming,  afterwards  to  be  noticed  (p.  98).  But,  apart  from  the 
fact  that  there  is  no  evidence  of  individual  farming  in  Ireland  at 
such  an  early  date,  it  is  difficult  to  see  how  it  would  solve  the 
question  of  over-population. 


90     THE    STATE   AND    THE   NATION 

For  these  will  be  found  to  throw  a  good  deal  of  light  on 
the  progress  of  social  organisation. 

In  the  first  place,  we  must  remember,  that  the  customs 
and  traditions  of  the  tribal  group  would  be  unlikely  to 
favour  the  breaking  up  of  good  pasture  land  for  the  un- 
certain prospects  of  a  future  crop.  The  rival  claims  of 
"pasture"  and  "arable"  are  very  ancient;  being,  in  fact, 
as  we  shall  see,  based  on  deep-seated  class-distinctions. 
Inasmuch  as  barren  and  stony  soil  would  be  of  little 
use  to  him,  the  tiller  of  the  soil  would  inevitably  turn  to 
the  great  masses  of  forest  and  jungle,  which,  in  fertile 
countries,  precede  and  hamper  the  spread  of  agriculture, 
and  which  are  useless  to  the  shepherd  and  herdsman.  But 
clearing  the  primeval  forest  by  hand  was,  in  the  days  when 
metal  implements  were  unknown,  an  impossible  process; 
and  there  is  widespread  evidence  to  show,  that  the  early 
agriculturist  made  use  of  the  extravagant  process  of 
burning  the  forest — an  extravagance  slightly  modified 
by  the  fact  that  the  resulting  ashes  would,  though  he 
probably  did  not  know  it,  add  to  the  fertility  of  the 
soil. 

But,  sooner  or  later,  the  primitive  agriculturist  would 
find  himself  up  against  a  rule  of  Nature,  known  to  scien- 
tists as  the  "Law  of  Diminishing  Returns,"  by  which 
ground  cropped  during  a  long  succession  of  seasons  with  the 
same  crop,  gives  each  year  a  smaller  and  poorer  yield.  The 
modern  scientific  farmer  knows,  of  course,  the  reason  of 
this  rule;  for  he  understands  the  chemistry  of  the  soil, 
and  realises  that  it  is  impossible  to  go  on  drawing  certain 
elements  from  it  without  producing  exhaustion,  unless  pro- 
vision is  made  to  restore  the  lost  elements.  The  primi- 
tive agriculturist  knew  nothing  of  this;  and,  if  he  rea- 
soned about  the  matter  at  all,  probably  thought  that  the 
soil  had  been  bewitched  by  some  enemy,1  or  that  he  had 

1  Even  such  a  comparatively  enlightened  code  as  the  Tv/elve 
Tables  of  Rome  made  provision  against  the  bewitching  of  crops 
(fruges  incantassit) .  The  picturesque  ceremony,  still  prevalent 


INTRODUCTION  OF  AG  RI  CULTURE  91 

chosen  a  bad  patch  of  ground.  In  either  case,  his  natural 
remedy,  though  a  troublesome  one,  was  to  clear  another 
patch,  and  start  again.  This  is  the  process  known  as 
"extensive  cultivation";  and  it  is,  of  course,  essentially 
wasteful,1  because,  almost  before  the  ground  is  clear  of 
stumps  and  weeds,  it  has  become  worthless  and  is  aban- 
doned, while  all  the  labour  of  clearing  begins  over  again. 
Nevertheless,  it  still  prevails  in  backward  countries;  and 
it  has  just  this  merit  to  recommend  it,  that  it  fits  in  rather 
well  with  the  wandering  habits  of  a  tribe  of  herdsmen, 
whose  principal  reliance  is  still  on  cattle  and  sheep,  but 
who  like  to  have  a  little  agriculture  in  the  background  as 
a  reserve. 

It  is,  however,  in  time  mitigated  by  the  adoption  of 
another  improvement  which  may  quite  well  have  been  the 
result  of  accident — probably  was.  Having  burned  off  all 
the  available  forest,  the  despairing  agriculturist  may  have 
resolved  to  try  his  luck  again  with  an  old  clearing,  aban- 
doned years  before  as  worthless.  To  his  surprise,  the  land 
has  recovered  its  fertility.  Again,  a  modern  farmer  would 
readily  understand  why.  During  the  period  of  FALLOW, 
the  soil  has  absorbed  from  the  sun  and  rain  the  elements 
which  it  had  lost  in  bearing  crops.  To  the  primitive  tiller, 
the  idea  is,  that  the  spell  or  curse  has  been  removed,  and 
that  he  may  now  proceed  again  to  crop  the  land  indefi- 
nitely. But,  once  more,  the  rule  of  Nature  asserts  itself, 
and,  again  in  despair,  he  returns  to  another  old  clearing, 
to  find,  to  his  delight  again,  at  first,  the  same  improve- 
ment, and,  later  on  again,  the  same  failure.  Only  very 
slowly  would  the  true  remedy  dawn  upon  him.  But,  ulti- 
mately, it  would;  and  thus,  by  circulating,  so  to  speak, 
among  a  series  of  patches,  he  would  give  to  each  a  period 

in  conservative  countries,  e.g.  Brittany,  of  blessing  the  fields, 
is  a  survival  of  the  same  idea. 

*Miss  Kingsley  points  out  (West  African  Studies,  pp.  342-3) 
that  this  process  is  not  only  extravagant  in  labour,  but  has,  in 
some  places,  the  very  serious  result  of  affecting  the  essential 
rainfall. 


92     THE   STATE   AND    THE   NATION 

of  work  followed  by  a  period  of  rest,  or  fallow,  and  thus 
lay  the  basis  of  a  simple  system  of  sound  agriculture.  This 
is,  apparently,  the  precise  stage  reached  by  the  peoples  of 
Benin  and  Biafra,  in  the  Hinterland  of  the  Niger  Coast, 
whose  agriculture  is  vividly  described  by  Miss  Kingsley,1 
and  who  have,  seemingly,  already  adopted,  though  in  prim- 
itive form,  that  "three-field"  system  which,  at  a  later  stage, 
played  such  a  conspicuous  part  in  European  agriculture. 
This  second  stage  of  agriculture  is  sometimes  known  as 
the  "field-grass"  system;  because  the  abandoned  or  fal- 
low patches  yield,  in  all  probability,  a  sort  of  rough  pas- 
ture for  the  cattle  and  sheep  of  the  tribe. 

The  third  stage  involves  a  much  greater  scientific  ad- 
vance; and,  unfortunately,  the  writer  is  not  aware  that 
any  adequate  explanation  of  its  origin  has  been  offered. 
It  is  based  on  the  great  discovery,  now,  of  course,  familiar 
to  every  one,  that,  while  a  continuous  series  of  harvests 
of  the  same  crop  on  the  same  ground  rapidly  exhausts  the 
soil,  a  changing  of  crops  exhausts  it  less  rapidly,  because 
different  kinds  of  crops  draw  different  elements  from  the 
soil.  In  the  absence  of  other  suggestion,  we  can  only  as- 
sume that  a  community  fortunate  enough  to  have  two  or 
more  different  kinds  of  edible  seeds  to  experiment  with, 
gradually  learnt  the  secret  by  a  series  of  trials.  At  any  rate, 
by  the  time  that  the  authentic  history  of  agriculture  in 
Western  Europe  begins,  we  find  the  system  of  ROTATION  OF 
CROPS  fully  established,  though  in  a  somewhat  crude  way. 
Later  on,  the  adoption  of  scientific  systems  of  manuring 
renders  the  wasteful  method  of  fallows  almost,  if  not  en- 
tirely, unnecessary.  But,  by  that  time,  the  conditions  of 
agriculture  have  entirely  changed,  as  we  shall  see. 

For  long,  however,  at  the  stage  which  we  have  reached 
in  our  enquiry,  agricultural  society  in  Western  Europe  was 
divided  as  to  the  merits  of  the  "two-field"  and  the  "three- 
field"  system  of  rotation;  and,  though  the  dispute  is  not, 

1  West  African  Studies,  pp.  341-2.  The  whole  passage  is  so 
interesting  that  it  is  a  matter  of  regret  that  limits  of  space 
prohibit  its  reproduction  in  full. 


INTRODUCTION  OF  AGRICULTURE  93 

perhaps,  strictly  germane  to  the  object  of  this  book,  it  is 
so  interesting,  that  a  brief  allusion  to  it  may  be  for- 
given. 

In  the  "two-field"  system,  the  land  to  be  exploited  is 
divided  into  two  equal  fields,  say  of  120  acres  each;  one  to 
be  cropped,  the  other  to  lie  fallow,  each  year.  The  "course 
of  husbandry"  for  a  year  would  then  be  as  follows.  In  the 
autumn  and  spring,  field  A  would  be  ploughed,  and  sown 
with  as  many  varieties  of  crops  as  were  desired;  during  the 
summer,  the  fallow  field  would  be  ploughed  twice  (to  get 
rid  of  the  stubble)  and  left  to  lie  fresh.  Result,  360  acres 
of  ploughing  and  120  acres  of  crops  for  the  year's  work. 
Under  the  "three-field"  system,  the  same  area  would  be 
divided  into  three  fields  of  80  acres  each,  of  which  two 
would  be  under  different  crops  and  one  lie  fallow.  If  the 
same  rule  or  "course"  were  applied  as  in  the  former  case, 
the  result  would  obviously  be  320  acres  of  ploughing  and 
160  acres  of  crop — i.e.,  one  ninth  less  ploughing  and  one 
third  more  crop.  It  seems  to  us  difficult  to  understand 
how  the  more  costly  system  could  ever  have  held  its  own; 
and  we  can  only  regard  it  as  a  belated  survival  of  the 
"field-grass"  system  (p.  92),  and  as  taking  inadequate  ac- 
count of  the  great  principle  of  rotation  of  crops.  Anyway, 
at  the  end  of  the  Middle  Ages,  the  "three-field"  system, 
by  which  each  field  gets  white  crop,  green  crop,  and  fallow, 
once  in  three  successive  years,  was  almost  universal  in 
Western  Europe;  and  we  may  regard  it  as  the  climax  of 
patriarchal  agriculture,  though,  as  new  varieties  of  seeds 
became  known,  it  tended  to  expand  into  a  "four-field,"  or 
even  a  "five-field,"  system. 

This  little  excursus  on  the  early  stages  of  agriculture 
will  not  have  been  without  its  uses,  if  it  has  caused  the 
reader  to  ask  the  natural  question:  "What  has  the  primi- 
tive farmer  to  do  with  fields  of  120  acres?  A  field  of 
that  size  would,  at  the  present  day,  tax  the  capacity  of 
even  a  scientific  farmer." 

True.  But  the  field  of  which  we  have  spoken  was  not 
tilled  by  a  single  farmer.  It  was  the  field  of  a  body  of 


94     THE   STATE   AND   THE   NATION 

farmers  working  in  COMMON;  and  thereon  hangs  its  im- 
portance for  our  subject.  For  it  is  clear,  both  from  direct 
and  indirect  evidence,  that  the  typical  village  of  the  Middle 
Ages  in  Western  Europe,  and  indeed  of  peoples  in  a  corre- 
sponding stage  all  the  world  over,  was  not,  like  the  typical 
village  of  modern  England  or  France,  merely  a  locality,  in 
which  certain  neighbours,  who  carry  on  their  work  inde- 
pendently, happen  to  live,  but  a  COMMUNITY,  carrying  on 
its  work  as  a  single  body  of  co-partners,  governed  by  cus- 
tomary rules,  to  which  all  must  conform.  It  is  important, 
in  view  of  a  question  to  be  subsequently  discussed,  not  to 
put  forward  extreme  views  in  this  matter.  There  is  no 
direct  evidence  of  a  time  at  which  complete  collectivism, 
as  understood  by  modern  idealists,  prevailed;  however  much 
we  may  suspect  that  such  a  state  of  things  at  one  time  ex- 
isted. But  there  is  a  good  deal  of  direct,  as  well  as  an  al- 
most overwhelming  amount  of  indirect,  or  circumstantial, 
evidence  of  the  fact,  that,  at  one  time,  one  of  the  most  im- 
portant of  the  operations  of  agriculture,  viz.  PLOUGHING, 
was  conducted  on  the  co-operative  principle;  and  there  are 
abundant  survivals,  even  in  our  own  day,  of  the  common 
uses  of  unploughed  land. 

The  indirect  evidence  is  furnished  by  what  is,  perhaps, 
the  most  unimpeachable,  because  the  most  unconscious, 
of  all  sources,  viz.  the  parcelling  out  of  the  soil.  For  if 
we  examine  the  Terrier,  or  ground-map  of  the  arable  fields 
of  any  village  (and  there  are  thousands  of  such  maps  in 
England  alone)  drawn  up  before  the  process  of  ENCLOSURE, 
hereafter  to  be  alluded  to  (pp.  229-30),  had  taken  place, 
the  merest  glance  will  reveal  a  state  of  affairs  which,  to 
modern  eyes,  seems  so  grotesque  as  to  excite  bewilderment 
or  derision.  Instead  of  a  plan  showing  a  moderate  num- 
ber of  fields  of  various  sizes,  of  which  four  or  five,  usually 
close  together,  arable  or  pasture,  belong  to  each  farmer,  or 
"tenant,"  we  find  all  the  arable  land  of  the  village  lying 
in  three  great  fields,  each  divided  into  an  enormous  num- 
ber of  narrow  strips,  usually  about  half  an  acre  in  extent, 
or,  at  any  rate,  as  nearly  equal  as  the  lie  of  the  ground 


INTRODUCTION  OF  AGRICULTURE  95 

will  permit.  These  strips  are  not,  like  modern  fields,  di- 
vided from  one  another  by  hedges  or  walls;  but  the  whole 
area  is  occasionally  intersected  by  terraces,  or  "baulks," 
of  turf  which  serve  for  access  to  the  open  or  "intermixed 
strips,  on  one  of  which  baulks  may  be  seen,  perhaps,  the 
village  mill.1 

Strange  as  this  picture  is  to  our  eyes,  it  is  nothing  to 
the  stupefaction  which  ensues  if,  as  frequently  happens, 
the  plan,  or  "Terrier,"  is  coloured  to  show  the  holding  of 
a  single  farmer.  For  then  we  discover,  to  our  amazement, 
that  the  farmer  of  the  day  on  which  it  was  drawn  up  held, 
not  a  compact  group  of  these  strips,  but  a  series  of  per- 
haps 60,  perhaps  120,  perhaps  even  240,  strips,  scattered 
over  each  of  the  three  great  fields,  at  considerable  dis- 
tances from  one  another.  If,  again,  we  are  fortunate 
enough  to  get  hold  of  a  Terrier  on  which  the  holdings  of 
all  the  farmers  are  shown  side  by  side,  we  shall  find  that 
these  are  intermixed  in  apparently  hopeless  confusion;  so 
that  the  whole  thing  looks  like  a  Chinese  puzzle,  designed 
for  the  bewilderment  of  the  student.  And  our  first  impres- 
sion is,  that  a  system  of  cultivation  based  on  such  arrange- 
ments is  an  elaborate  device  for  wasting  time  and  labour. 
Such,  in  fact,  when  its  original  purpose  had  been  lost,  it 
ultimately  became.  But,  though  we  know  that  savages, 
and  even  barbarians,  have  little  notion  of  the  value  of  time, 
we  know  also  that  they  shrink  from  unnecessary  labour; 
and  we  cannot  help  thinking  that  we  are  here  face  to  face 
with  one  of  those  SURVIVALS,  of  which  human  history  is 
full,  and  which,  if  patiently  examined,  give  us  the  clues  to 
so  much  of  the  unrecorded  past. 

For,  if  we  look  a  little  more  closely  at  the  complete 
scheme  of  our  map,  we  shall  begin  to  see  something  of  a 
method  in  the  apparent  madness.  It  is  true  that  the  strips 
of  the  different  farmers  are  intermixed,  "hide-meal  and 
acre-meal";  but  we  shall  notice  that  there  is  an  order,  or 
succession,  of  strip-holdings,  which  is  regularly  followed 
throughout  the  scheme.  For  example,  if  we  call  the  differ- 
*See  Diagram  A  at  end  of  volume. 


96     THE   STATE   AND    THE   NATION 

ent  farmers  A,  B,  C,  D,  E,  and  so  on,  we  shall  find  that 
the  order  of  the  strips  runs  A,  B,  C,  D,  E,  to  the  end  of  the 
list,  and  then  begins  over  again  with  A,  B,  C,  D,  E,  etc., 
and  goes  on,  as  before,  to  the  end  of  the  list,  and  then 
begins  again,  until  the  field  is  covered;  while  a  similar 
process  is  repeated  in  each  of  the  three  fields.  Probably 
the  scheme  will  not  be  perfectly  regular;  for  accidental 
displacements  will  have  happened  in  the  course  of  cen- 
turies. But  enough  remains  to  set  us  thinking. 

And  then,  again,  further  study  will  reveal  the  fact  that, 
though  there  is  not  complete  equality  of  holding  among 
the  various  farmers,  there  is  considerable  evidence  of  a 
scale,  in  which  one  group  will  have  holdings  amounting  in 
all  to  30  acres,  another  (and  smaller)  group,  of  60  acres,  a 
third  (still  smaller)  group,  of  120  acres,  and,  finally,  one 
much  larger  holder,  known  as  the  "lord,"  "seigneur," 
"thane,"  "Zamindar"  and  so  on,  according  to  the  country 
and  language.  This  is  not  quite  chaos. 

Now,  as  is  well  known  to  students,  there  are  two  ex- 
planations, given  by  rival  schools  of  thought,  of  this  ex- 
tremely puzzling  state  of  affairs.  The  one  school  regards 
it  as  the  result  of  a  parcelling  out  of  duties  among  his  de- 
pendents by  the  master  of  a  slave  gang,  who  is  exploit- 
ing his  land  by  their  services.  These  students  find  its 
origin,  in  fact,  in  the  Roman  Empire,  with  its  latifundia, 
or  huge  estates  worked  by  slave  labour,  so  patriotically 
deplored  by  more  than  one  Roman  writer;  and  they  point, 
triumphantly,  to  the  existence  of  the  "lord"  or  "seigneur," 
and  the  undoubted  claims  which  he  everywhere  had 
upon  the  services  of  the  humbler  farmers,  as  proofs  of 
their  theory.  But,  to  say  nothing  of  the  fact  that  the 
system  is  to  be  found  at  work  in  countries,  such  as  India, 
whither  Roman  influence  never  penetrated,  and  that  the 
presence  of  the  "lord"  or  "seigneur"  can  be  accounted 
for  by  other  well-known  causes  (p.  100),  is  it  possible  to 
suppose  that  any  absolute  proprietor  would  deliberately 
set  up  such  a  wasteful  and  absurd  system?  Moreover, 
there  is  another,  and  almost  conclusive  disproof  of  the 


INTRODUCTION  OF  AGRICULTURE  97 

theory,  in  the  fact  that,  as  we  have  already  noted  (pp. 
76-77),  the  existence  of  the  village  or  "manorial"  cus- 
tom binds  the  "lord"  as  well  as  the  villagers,  and  often  in 
singularly  inconvenient  ways.  For  example,  it  is  a  gen- 
eral feature  of  English  manorial  customs  that,  though  the 
timber  on  the  land  of  the  smaller  farmers  at  least,  and 
the  minerals  beneath  it,  belong  to  the  "lord,"  yet  he  cannot 
enter  on  the  farmer's  land  to  cut  the  one  or  dig  for  the 
other,  without  the  farmer's  permission.  No  absolute 
owner  would  ever  have  allowed  himself  to  be  bound  by 
such  a  rule;  still  less  absolute  owners  generally.  The 
theory  of  the  Roman  dominus  in  this  connection  is  un- 
thinkable. 

The  other  school  of  thought  regards  the  appearance  of 
the  Terriers  as  evidence  of  an  originally  co-operative,  or, 
at  least,  co-ordinated  system  of  cultivation,  or  even  of 
exploitation,  which  was  gradually  being  dissolved  by  a 
process  of  individualism,  of  which  the  "enclosure  move- 
ment" (to  be  hereafter  described)  was  the  last  stage. 
They  point  to  the  evidence  of  familiar  language — the  com- 
mune of  France,  the  Gemeinde  of  Germany,  the  "com- 
mon" of  the  English  countryside — to  the  rare  survivorship 
of  communal  officials — the  "pindar"  (or  pound-keeper),  the 
"parker"  (or  common-keeper),  the  "beadle,"  the  "verderer," 
the  watchman,  and  so  on — 1  whose  services  were  rendered, 
not  to  individuals,  but  to  the  village  as  a  whole,  and  who 
were  maintained  by  the  common  husbandry,2  to  the 
process,  still  surviving  in  some  countries,  of  periodical  re- 
distribution or  re-allotment  of  the  strips  which,  doubtless, 
gives  us  the  ancient  law-term  of  alod, 3  or  absolute  property 
(as  opposed  to  the  fief,  or  land  received  from  a  lord  on  con- 

1  In  %later  times  these  were  nominated  in  the  "vestry,"  which 
had  taken  the  place  of  the  old  moot. 

8  In  a  sense,  the  parson  was  a  village  official,  taking  his  tithe 
"as  the  plough  traverseth  the  tenth  acre." 

*  It  is  not  a  little  curious,  that  the  popular  name  for  a  modern 
small  plot  is  an  "allotment";  though  there  is  no  drawing  of 
lots  for  it  in  most  cases. 


98     THE    STATE   AND    THE   NATION 

dition  of  rendering  service),  to  the  existence  of  the  "hom- 
age" (pp.  76-77)  with  its  powerful  restraint  on  lord  or 
seigneur,  to  the  immemorial  "custom  of  the  country,"  which 
no  man  could  break,  to  the  village  rights  of  church-way  and 
"sports  on  the  green,"  and,  above  all,  to  the  great  eight- 
oxen  ploughs,  for  which  the  villagers  supplied  the  cattle  in 
shares  proportioned  to  their  holdings,  so  that,  as  Domes- 
day Book  puts  it  in  one  passage,  "There  is  there  one  half- 
ox."  i  In  the  view  of  this  school  of  thought,  then,  the 
original  agricultural  village  is  a  group  of  co-operators, 
working,  perhaps,  under  the  direction  of  a  chief,  but  treat- 
ing the  land  as  a  common  stock;  ploughing,  sowing,  reaping, 
threshing,  and  storing  by  common  effort,  and,  it  may  be, 
distributing  the  produce  on  a  common  plan.  Then,  with 
the  growth  of  capitalist  farming,  so  marked  a  feature  of  the 
twelfth  century  in  Western  Europe,  the  spirit  of  individual- 
ism begins  to  dissolve  the  COMMUNITY.  The  ancient 
ploughlands — the  "common  fields" — are  divided  up  with 
rigorous  accuracy  into  tiny  strips;  and  these  are  distributed 
by  lot  amongst  the  members  of  the  group  in  such  a  way  that 
each  gets  his  due  share  of  good,  medium,  and  poor  land, 
and,  further  to  ensure  "equality  of  opportunity,"  there  is  a 
periodical  redistribution  by  the  same  primitive  methods. 
Each  farmer  then  ploughs  and  reaps  "his  own"  strips,  i.e. 
those  "shifting  severalties"  which  will  be  his  till  the  next 
redistribution;  for  the  old  heavy  eight-oxen  plough  has 
been  replaced  by  the  more  modern  and  lighter  instrument, 
which  the  farmer's  own  two  oxen  can  draw.  Gradually,  as 
the  farmer  begins  to  understand  the  increased  value  put 
into  land  by  skilful  manuring  and  cropping,  he  becomes 
more  and  more  reluctant  to  give  up  his  land  at  redistribu- 
tion, and  take  over  another,  and,  possibly,  inferior  holding. 
So,  some  day,  the  process  of  redistribution  ceases;  and  we 
get  the  picture  described  above,  of  the  holding  dispersed 
with  (as  it  seems  to  us)  preposterous  vagrancy  over  the 
arable  area  of  the  village.  But  there  the  individualising 

1  Ibi  est  semi-bos.    The  problem  would  be  solved  by  supplying 
one  ox  at  alternate  ploughings. 


INTRODUCTION  OF  AGRICULTURE  99 

process  stops;  until  it  is  completed  by  the  modern  EN- 
CLOSURE MOVEMENT  (pp.  229-30). 

Moreover,  the  supporters  of  this  view  point  to  the  un- 
questioned fact,  that  this  incomplete  process  of  indivi- 
dualising barely  touches  the  meadow  and  "waste"  land 
of  the  village.  Until  the  "enclosures"  of  quite  modem 
days,  the  meadow  was  only  parcelled  out  during  hay- 
growth  and  hay-harvest.  For  the  rest  of  the  year,  it  was 
grazed  by  the  villagers'  cattle  and  sheep,  in  accordance 
with  a  "stint"  or  fixed  allowance,  settled  by  the  size  of 
their  respective  arable  holdings.  These  are  the  beasts 
levants  and  couchants  on  the  land,  so  well  known  to  students 
of  English  land  law.  Over  the  waste  or  "common"  (in  the 
popular  sense),  there  were  no  individual  rights.  It  remained 
open  and  unenclosed  during  the  whole  year;  and  to  it  the 
villagers  resorted  for  their  wood  and  water,  the  turf  for 
their  fires,  and  their  clay  and  stone,  for  the  feed  of  their 
inferior  animals — their  swine,  asses,  geese,  goats,  and  the 
like — and,  it  is  to  be  shrewdly  suspected,  for  the  gratifica- 
tion of  their  primeval  hunting  instincts  in  coney-trapping 
and  fowling.  The  typical  medieval  village  was,  in  truth,  a 
compendium  of  the  three  stages  of  economic  progress  which 
we  have  hitherto  examined,  viz.  the  hunting,  the  pastoral, 
and  the  agricultural  stages. 

And,  if  we  regard  this  elaborate  system  as  an  artificial 
product,  no  doubt  it  will  deserve  all  the  criticism  passed 
upon  it  by  the  vigorous  opponents  of  the  community  theory. 
Conscious  creation  of  institutions  is  hardly  to  be  found 
among  undeveloped  peoples.  But  if  we  can  show  that  it 
fits  in,  as  the  natural  sequence  of  the  older,  pastoral,  sys- 
tem as  it  stood  at  the  period  of  transition,  then  we  are 
fairly  entitled  to  regard  it  as  a  development  from  patri- 
archal principles,  modified  by  a  change  in  economic  cir- 
cumstances. Fortunately,  we  are  able  to  do  this  with  the 
aid  of  evidence  drawn  from  the  British  Islands. 

In  that  fascinating  collection  of  antiquities  known  as 
the  Ancient  Laws  of  Ireland,  there  is  a  vivid  description  of 
an  important  person  known  as  a  Flaith,  who  is,  obviously, 


100  THE   STATE   AND   THE   NATION 

the  head  of  a  social  group  of  various  kinds  of  men— his 
Ciniud,  or  kinsmen  on  the  male  side,  his  Ceile,  or  men  who 
have  received  from  him  cattle  to  graze  out  on  the  tribal 
lands,  and  his  Fuidkir,  or  strangers,  whom  he  has  collected 
round  him,  as  captives  or  bondsmen.  In  order  to  attain 
this  position,  the  Flaith  must  have  been  a  rich  cattle-lord, 
a  Bo-air  e,  of  three  generations'  standing;  and  he  was 
evidently  then  just  becoming  transformed  into  a  village 
lord,  by  the  adoption  of  agriculture.  There  is  a  striking 
resemblance  between  the  arrangements  of  his  group  and 
those  of  the  VILLAGE  COMMUNITY  which  we  have  lately 
been  describing.  The  "  Flaith"  himself  is,  of  course,  the 
"lord"  or  seigneur  (senior).  His  Ciniud,  or  free  kinsmen, 
suggest  the  big  farmers,  the  "whole-hide  men,"  with  a  full 
holding  of  120  acres  or  thereabouts,  probably  paying  only 
just  such  trifling  dues  as  are  customary  everywhere  as 
gifts  to  a  tribal  chief.  They  may  be  the  mysterious 
"socagers"  of  the  English  common  law,  or  the  "kindly 
tenants"  of  the  Scottish  davoch.  His  Ceile,  who  have 
received  from  him  loans  of  cattle  in  return  for  a  substan- 
tial part  of  the  produce,  may  be  the  "half-hide  men,"  the 
"steel-bow"  tenants  of  Scotland.  In  later  days,  they  will 
be  substantially  rented  in  money  or  labour  dues.  The 
Fuidhir,  or  strangers,  suggest  the  "farthing-men"  or  "yard- 
lings"  of  later  times,  the  servile  tenants  who  "know  not 
in  the  morning  what  they  must  do  before  the  evening," 
on  their  lord's  "demesne"  or  "in-land" — whc  are,  in  fact, 
SERFS,  though  they  have  little  holdings  of  thirty  acres  or 
so.  "according  to  the  custom,"  from  which  they  extract 
a  scanty  living.  It  all  looks  very  much  like  the  Bally  of  the 
Irish  Laws,  which  is,  evidently,  a  pastoral  unit  just  adopt- 
ing agriculture  "because  of  the  abundance  of  the  house- 
holds" (p.  88),  and,  though,  primarily,  a  "run"  for  300 
cattle,  has  also  12  seisrighs,  or  ploughlands,  each  of  120 
acres. 1 

'Finntann,  Battle  of  Magh  Lena.  We  need  not  take  the 
poet's  statistics  literally.  But  he  would  hardly  be  likely  to 
misrepresent  obvious  facts. 


INTRODUCTIONOFAGRICULTURE101 

Finally,  before  leaving  the  influence  of  agriculture  on 
social  organisation,  we  must  notice  one  important  and 
rather  tragic  fact  connected  with  it.  When  the  tiller  of  the 
soil  has  discovered  the  secret  of  rotation  of  crops,  and  the 
value  of  proper  treatment  of  the  soil,  he  has  anchored 
himself  to  the  land,  and  will  cling  to  it  whilst  life  lasts. 
He  has  abandoned  his  moving  tent,  and  built  himself  a 
hut  of  clay  and  wattles,  or  even,  it  may  be,  of  timber  and 
thatch.  His  "capital"  is  now  no  longer  movable  beasts, 
which  can  be  hurried  off  to  a  place  of  safety  if  danger 
threatens.  It  is  true,  that  even  the  pastoralist  needs  land 
for  his  livelihood.  But  he  does  not  need  a  particular  spot 
of  land,  without  which  he  must  perish.  That  is  the  tragedy 
of  the  tiller  of  the  soil.  That  is  it,  more  even  than  feudal 
restraints,  which,  in  time  to  come,  will  make  him  adscriptus 
glebes,  a  "villein  regardant,"  as  the  Anglo-Norman  common 
law  puts  it — a  serf  bound  to  the  soil.  In  a  very  real  sense, 
he  has  given  hostages  to  fortune;  and  much  of  the  great 
change  in  the  organisation  of  society  which  we  are  shortly 
about  to  describe,  is  due  to  that  central  fact.  But,  before 
coming  to  that  change,  we  must  describe  shortly  the  efforts 
made  by  patriarchal  society  to  assimilate  a  yet  more  far- 
reaching  development  of  human  intelligence,  viz.  crafts- 
manship and  trade  or  commerce. 


CHAPTER  VIII 

COMMERCE  AND  CRAFTSMANSHIP 

IT  is  very  difficult  to  discover  whether  commerce  or  crafts- 
manship comes  first  in  the  order  of  social  evolution.  The 
root  idea  of  both  is  EXCHANGE;  but  whereas,  in  the  case 
of  commerce,  exchange,  and  especially  exchange  between 
two  more  or  less  separated  communities,  is  the  prominent 
idea,  in  speaking  of  craftsmanship,  we  think  rather  of  the 
skill  which  goes  to  the  production,  or  making,  of  artificial 
objects  for  use  or  ornament,  though  we  realise  that  a  de- 
veloped and  specialised  craft  is  hardly  possible,  except 
upon  the  basis  of  a  system  of  exchange.  No  doubt,  as  we 
have  seen,  craftsmanship  may  be  said  to  have  existed  in 
the  purely  pastoral  stage,  in  the  making  of  cheese  and 
butter,  and  the  spinning  and  weaving  of  wool.  But  these 
were  not  highly  specialised  industries;  rather  were  they 
supposed  to  be  simple  arts  which  could  be  acquired  by  any 
one  prepared  to  take  ordinary  care.  They  were,  as  we  say, 
"domestic  industries,"  to  be  found  in  each  household; 
and  the  same  may  be  said  of  the  arts  of  threshing,  winnow- 
ing, grinding,  and  baking  the  corn,  and  brewing  the  malt, 
in  the  later  agricultural  stage.  In  reality,  of  course,  there 
was  exchange  of  services  going  on  all  the  time;  but  no 
obvious  exchange  of  goods.  On  the  other  hand,  there  is 
some  reason  to  believe,  that  the  exchange  of  raw  materials, 
to  which  human  labour  hardly  contributed,  was  known  to 
some  communities  long  before  the  pastoral  stage  had  reached 
its  full  development,  and  before  the  elaborate  system  of 
agriculture  described  at  the  end  of  the  last  previous  chapter, 
had  been  developed.  We  may,  therefore,  deal  first  with  the 
beginnings  of  COMMERCE. 

1 02 


COMMERCE  AND  CRAFTSMANSHIP  103 

It  is  instructive  to  notice  that,  even  among  the  Australian 
aboriginals  (perhaps,  on  the  whole,  the  most  primitive 
people  whose  conditions  have  been  subjected  to  recent 
scientific  analysis),  there  is  something  that  may  fairly  be 
called  commerce.  Thus,  a  group  which  finds  in  its  wander- 
ings an  unusually  good  supply  of  a  certain  green  stone, 
greatly  valued  for  making  the  heads  of  axes,  will  exchange 
it  with  another  group  for  a  surplus  of  highly  decorative 
feathers,  used  in  religious  rites.  There  is  a  good  deal  of 
rather  formal  procedure  attendant  upon  these  transactions, 
which  is  rendered  needful  by  apprehensions  of  danger  in 
dealing  with  strangers.  But  the  most  vivid  picture  of 
early  commercial  intercourse  known  to  the  writer  is  that 
drawn  by  Miss  Mary  Kingsley, 1  in  her  summary  of  an 
account  given  by  a  Venetian  traveller,  Ca  da  Mostro,  in 
the  fifteenth  century,  of  the  salt  trade  between  the  Arabs 
and  Moors  of  Northern  Africa  and  the  negroes  of  a  district 
called  by  him  "Melli,"  apparently  somewhere  between 
Sierra  Leone  and  the  Gold  Coast. 

According  to  Ca  da  Mostro,  the  salt  was  brought  by  the 
Arabs  on  camels  from  a  place  called  Tagazza,  by  way  of 
Timbuctoo,  to  Melli.  There  it  was  unloaded,  on  the  banks 
of  a  "great  water,"  possibly  the  Niger  Joliba,  and  straight- 
way arranged  in  separate  heaps,  each  bearing  its  owner's 
mark.  The  merchants  who  had  brought  it  then  retired  half 
a  day's  journey;  and,  when  they  were  well  out  of  sight,  the 
negroes  would  approach  and  lay  a  quantity  of  gold  on 
each  heap,  and  likewise  retire.  The  salt  merchants,  re- 
turning, would  find  the  gold  thus  offered,  and,  if  they  were 
satisfied  with  the  amount,  take  it  up,  and  retire  once  more, 
leaving  the  salt  to  be  fetched  away  by  the  negroes.  If  they 
were  dissatisfied,  they  would  leave  both  the  salt  and  the 
gold,  and  retire  once  more,  leaving  the  negroes  to  increase 
their  offer,  if  willing.  If  not,  after  due  delay,  and  possible 
further  repetitions  of  the  process,  they  would  ultimately 
withdraw  the  salt,  leaving  the  negroes  to  fetch  away  their 
gold  after  they  (the  salt  merchants)  had  finally  withdrawn. 
1  West  African  Studies,  pp.  241-6. 


104  THE   STATE   AND   THE   NATION 

If  this  process  seems  a  trifle  tedious  to  the  modern  business 
man,  he  must  remember  that  primitive  people  have  no 
notion  of  the  value  of  time — do  not,  in  fact,  know  what  it 
means  as  an  article  of  value. 

The  absurdities  of  this  procedure  should  not  blind  us  to 
its  significance.  Obviously,  the  feature  which  distinguishes 
it  from  modern  commerce  is  the  physical  fear  which  one  of 
the  parties,  at  least,  has  of  the  other,  and  his  extreme  un- 
willingness to  come,  into  personal  contact  with  his  opposite 
number.  .This  feature  is  strikingly  illustrated  by  a  story, 
which  Ca  da  Mostro  goes  on  to  relate,  of  an  occasion  on 
which  the  Arab  traders  were  ordered,  much  against  their 
will,  by  their  "Emperor,"  to  seize  some  of  the  negro  gold- 
bringers  at  all  costs.  They  succeeded  in  carrying  out  their 
instructions;  but,  though  they  retained  only  one  captive, 
and  treated  him  (according  to  the  account)  with  every 
kindness,  he  refused  to  speak,  or  to  take  food  or  drink,  and 
incontinently  died  on  their  hands.  After  which,  the  "silent 
trade"  was  suspended  for  three  years,  to  the  dismay  of 
the  Arabs  and  their  too  inquisitive  "Emperor."  But,  hap- 
pily, the  desire  of  the  negroes  for  salt  at  length  overcame 
their  fears;  and,  in  the  fourth  year,  the  trade  was  resumed. 
In  a  modified  form,  this  "silent  trade,"  Miss  Kingsley 
assures  us, 1  continues  on  the  Guinea  Coast  to  the  present 
day. 

Another  feature  of  the  transaction  should  be  noticed. 
In  spite  of  the  somewhat  vague  language  of  the  account, 
it  is  clear  that  the  gold  offered  by  the  negroes  was  not  in 
the  form  of  COIN,  i.e.  there  was  no  recognition  of  PRICE, 
which  is  defined  by  economists  as  "value  expressed  in 
terms  of  money."  It  was  the  older  form  of  exchange 
known  as  BARTER.  Nevertheless,  it  is  difficult  to  believe 
that  some  rough  estimate  of  a  standard  value  would  not 
be  formed  by  even  the  less  civilised  parties  to  the  trans- 
action, or  that  this  rough  standard  would  not  be  made  the 
basis  of  subsequent  transactions.  Accordingly,  we  are  not 
surprised  to  find  that  a  somewhat  later  traveller  in  the  same 
1  West  African  Studies,  p.  248. 


COMMERCE  AND  CRAFTSMANSHIP  105 

district,  Captain  Jobson,  who  visited  it  in  the  seventeenth 
century,  relates  that  a  further  stage  had  been  reached  in 
the  "higgling  of  the  market."  The  salt  merchants  who 
were  dissatisfied  with  the  gold  offered  for  their  heaps,  would 
subtract  from  the  heaps  so  much  salt  as  was  necessary  to 
reduce  them  to  the  equivalent,  in  their  opinion,  of  the  gold 
actually  offered,  placing  the  subtracted  heap  away  from 
the  gold;  and  would  then  retire,  to  give  the  negroes  an 
opportunity  of  considering  the  amended  offer.  If  it  were 
accepted,  a  rough  equivalent  of  gold  would  be  found  added 
to  make  up  the  deficit;  if  it  were  refused,  the  whole  of  the 
gold  would  be  taken  away. 1 

Here  we  have,  in  primitive  form,  the  essence  of  the 
FOREIGN  MARKET.  But  another  detail  added  by  Ca  da 
Mostro  is  of  great  interest.  He  tells  us 2  that  the  salt,  to  be 
popular,  had  to  be  broken  up  into  lumps  capable  of  being 
carried  by  "footmen" — i.e.  porters,  who  were  furnished  with 
cleft  sticks  on  which  to  rest  their  burdens,  and  that  these 
burdens  were  carried  great  distances  in  various  directions, 
though  he  is  vague  on  this  point.  He  also  tells  us,  that  the 
gold  received  by  the  merchants  went  in  various  directions, 
which  he  specifies  with  some  detail,  including  Cairo,  Tunis, 
Morocco,  and,  ultimately,  Europe,  through  the  hands  of 
European  merchants  who  traded  to  the  Barbary  Coast. 
Thus  we  see,  that  this  primitive  foreign  trade  had  already 
resulted  in  the  establishment  of  some  of  those  ancient 
CARAVAN  ROUTES,  which  were  one  of  the  earliest  means  of 
spreading  civilisation,  and  widening  the  area  of  social  inter- 
course. 

Incidentally,  we  may  remark,  before  passing  on  to  the 
next  stage  of  commercial  development,  that  these  accounts, 
if  trustworthy  (and  there  is  little  reason  to  doubt  it),  and  if 
they  are  typical,  seem  to  give  the  lie  to  the  view  which 
regards  commerce  as  a  form  of  war.  On  the  contrary,  they 
afford  the  strongest  evidence  that  one  of  the  first  effects 
of  commerce  is  to  substitute  peaceful  for  warlike  inter- 
course. For  it  is  tolerably  clear  that,  had  the  parties  met 
1  West  African  Studies,  p.  248.  '  Ib.  p.  243. 


106  THE   STATE  AND   THE  NATION 

without  its  influence,  hostilities  would  have  resulted.  The 
merchant  is,  in  fact,  the  first  messenger  of  peace  between 
stranger  peoples;  and  the  ceremonial  exchange  of  gifts 
which  takes  place  on  the  approach  of  strangers  in  Oriental 
countries  at  the  present  day,  and  which  survived  in  purely 
symbolic  form  in  the  gifts  made  by  the  "Houses"  of 
stranger  merchants  (pp.  112-13)  to  the  rulers  of  the  coun- 
tries in  which  they  were  domiciled,  at  Christmas  and 
Easter,  well  into  the  Middle  Ages,  are  testimony  to  this  truth. 

The  only  other  point  which  it  seems  necessary  to  make 
at  this  stage  is,  to  note  the  fact  that  the  establishment  of 
foreign  commerce  necessarily  involves  a  factor  which,  in 
the  future,  will  play  a  great  part  in  economic  life,  viz.  the 
factor  of  TRANSPORT.  In  all  probability,  for  reasons  before 
hinted  at  (pp.  103-4),  the  negroes  who  brought  the  gold  in 
the  transactions  described  by  Ca  da  Mostro  and  Jobson,  did 
not  realise  the  existence  of  this  factor.  But  the  more 
civilised  party,  the  salt  merchants,  would  certainly  not 
have  undertaken  the  long  and  arduous  journey  across  the 
desert,  unless  they  had,  in  some  fairly  definite  way,  realised 
that  there  would  ultimately  be  a  PROFIT  on  the  transaction, 
not,  as  in  pastoral  pursuits,  in  the  shape  of  calves  and 
lambs  (p.  41),  but  in  some  more  subtle  form.  And,  in 
order  to  produce  this  profit,  it  would  be  necessary  that  the 
value  of  the  gold  acquired  by  them  should  exceed  the  cost 
in  labour  or  goods,  of  acquiring  the  salt,  at  least  by  the  cost, 
in  labour  and  provisions,  of  the  desert  journey.  Of  course, 
to  a  modern  economist,  the  factor  of  transport  is  also 
always  present,  even  in  trading  between  neighbours.  But 
it  is,  there,  of  much  less  importance  than  in  foreign  com- 
merce, and  especially  in  the  more  elementary  forms  of  home- 
trading  which  we  must  now  consider.  As  we  have  previ- 
ously suggested,  these  are  brought  into  existence  by  the 
appearance  of  CRAFTS,  or  specialised  industries.  And  these, 
again,  owe  their  existence  largely,  if  not  entirely,  to  ad- 
vances in  the  knowledge  of  METALS  and  metal  working. 

As  we  have  before  suggested,  the  first  great  advance  in 
the  economic  development  of  mankind  comes  with  the 


COMMERCE  AND  CRAFTSMANSHIP  107 

substitution  of  stone  for  wood  in  the  fashioning  of  primitive 
tools  and  weapons.  So  clearly  is  this  recognised,  that  the 
title  of  the  Stone  Age  is  usually  given  to  the  period  by 
which  it  was  initiated,  and  during  which  it  remained  the 
chief  material  employed  for  such  purposes.  The  ingenuity 
and  patience  implied  in  the  vast  collections  of  flint  axes, 
hammers,  and  spear-heads,  familiar  to  visitors  of  the  great 
European  museums,  are  considerable,  and  must  have  tended 
greatly  to  stimulate  the  inventive  faculties  of  their  makers. 
But  the  limits  of  stone  for  such  purposes  are  obvious. 
It  is  not  pliable;  it  is  very  apt  to  split  in  use  or  to  become 
weather-worn;  in  proportion  to  its  strength,  it  is  heavy — 
a  most  important  objection  when  artificial  transport  is 
unknown;  in  a  word,  its  strength  lies  in  its  weight  rather 
than  its  fineness.  It  is  little  wonder  that  Man  eagerly 
welcomed  substitutes  if  he  was  lucky  enough  to  find  them. 
Apparently,  the  earliest  successors  of  stone  were  the 
softer  and  more  easily  worked  metals — gold,  copper,  tin, 
and  ivory,  which  last  is  not,  of  course,  a  metal,  but  is  like 
one  in  many  respects,  and  was,  in  fact,  used  as  a  metal  by 
the  peoples  who  were  able  to  obtain  it  from  Africa  and 
India.  The  valuable  qualities  of  this  group  of  metals  are, 
that  they  are  easily  detached  from  their  sources,1  easily 
worked  by  the  simple  process  of  hammering,  and  are  yet 
greatly  superior  in  fineness  (also  in  attractiveness  of  ap- 
pearance) to  the  older  material,  stone.  It  is  difficult  to 
imagine  stone  helmets,  corselets,  greaves,  or  even  shields 
(which  probably  made  their  first  appearance  in  the  form 
of  skin  targets),  to  say  nothing  of  kettles,  goblets,  and 
other  useful  domestic  implements.  But  we  have  abundant 
evidence  that  these  useful  articles  were  made  of  gold  and 
copper,  or,  at  a  somewhat  later  stage,  of  bronze  (a  mixture, 
or  alloy,  of  copper  and  tin),  and  that  these  products  were 
regarded  with  much  pride  by  their  fortunate  owners.  The 

1  Most  early  gold  and  tin  mining  is,   of  course,  alluvial.  It 

was,  probably,  through  the  latter  that  the  British  Islands,  or 

Casseterides,  became  attached  to  the  civilisation  which  grew  up 
round  the  Mediterranean  Sea. 


108  THE   STATE   AND   THE   NATION 

Homeric  poems  give  us  a  vivid  picture  of  a  society  at  this 
stage  of  development;  it  was  the  stage  which  the  Mexicans 
and  the  Peruvians  had  reached  at  the  time  of  the  Spanish 
conquest;  and  it  is  the  stage  of  the  Jews  of  the  Exodus. 

We  can  hardly  doubt  that,  even  at  this  stage,  the  influ- 
ence of  specialism  would  make  itself  felt.  The  "cunning 
artificer  in  brass"  (the  maker  of  the  harp  and  cymbals, 
the  hammerer  of  corselets  and  greaves)  is  not  to  be  found 
on  every  bush;  and  there  is,  in  fact,  a  good  deal  of  tradi- 
tional evidence  to  show  that  the  crafts  of  the  armourer 
and  the  musician,  probably  also  of  the  maker  of  goblets 
and  golden  ornaments,  had  emerged  before  the  appearance 
of  the  great  discovery  which  was  to  revolutionise  the  world, 
viz.  the  art  of  working  in  IRON. 

The  superior  qualities  of  iron,  its  intense  durability  and 
hardness,  its  abundance  and  consequent  cheapness,  are 
discounted  by  certain  drawbacks,  which  probably  account 
for  its  late  appearance  in  the  development  of  industry.  In 
the  first  place,  it  is  difficult  to  mine  with  primitive  imple- 
ments; and  this  fact  may,  possibly,  have  prevented  its 
value  being  even  realised.  If  this  is  so,  we  should  look  for 
the  beginnings  of  the  iron  industry  in  South  Africa,  where 
great  heaps  of  iron  ore  are  found  near  the  surface  of  the 
ground,  in  a  state  comparatively  easy  to  work.  In  fact, 
there  is  a  curiously  persistent  legend,  that  the  art  of  work- 
ing in  iron,  the  art  of  the  SMITH,  was  spread  throughout 
Europe  and  India  by  wandering  bands  of  people  whom  we 
now  call  "Gypsies,"  but  who  were,  even  in  England,  known 
officially  as  "Egyptians";  and,  though  Egypt  is  certainly 
not  in  South  Africa,  it  is  getting  on  that  way,  while  the  long 
distances  which,  as  we  have  seen  (pp.  103-5),  are  covered, 
in  quite  early  stages,  for  the  sake  of  acquiring  that  most 
primitive  and  essential  of  all  minerals,  viz.  salt,  should 
make  us  hesitate  before  condemning  such  legends  as  en- 
tirely untrustworthy.  Moreover,  the  curious  fact  that, 
in  comparatively  recent  times  in  Europe,  the  smith,  or 
worker  in  iron,  was  not  regarded  as  a  member  of  the  village 
group,  but  lodged  on  its  outskirts,  or  even  in  a  hollow  on  a 


COMMERCE  AND  CRAFTSMANSHIP  109 

distant  moor,  suggests,  on  the  one  hand,  that  instinctive 
dislike  of  strangers  which  is  so  marked  a  feature  of  early 
society,  and,  on  the  other,  a  desire  to  keep  from  prying 
eyes  those  valuable  secrets  of  the  trade,  *  which  alone  made 
of  the  travelling  gypsy  or  tinker  a  welcome,  if  a  somewhat 
suspected  visitor. 

Again,  iron  is  not  only  difficult  to  win,  it  is  difficult  to 
work.  The  older  and  softer  metals — gold,  copper,  tin — 
can  be  beaten  out  cold;  though,  doubtless,  they  also  can  be 
better  Worked  after  being  partially  melted  or  "smelted," 
and  were  in  fact  so  worked  before  the  advent  of  iron.  But 
the  latter  can  hardly  be  worked  at  all  without  being 
smelted;  and  smelting  is  a  difficult  art,  which  can  only  be 
carried  on  successfully  with  considerable  co-operation  of 
labour,  and  the  development  of  high  technical  skill.  The 
early  discovery  of  that  refined  art  of  smelting  which  pro- 
duces steel,  or  "northern  iron,"  gave  to  Damascus  a  long 
period  of  wealth  and  prosperity,  which  made  her  the  envy 
of  surrounding  peoples. 

Once,  however,  the  art  of  the  smith  had  been  discovered, 
the  variety  of  the  uses  to  which  it  can  be  put  made  it  the 
prolific  parent  of  other  arts,  and  revolutionised  society,  by 
producing  new  classes  of  men  who  fitted  badly  into  the 
older  system  of  the  village  or  tribal  group,  and  ultimately 
gave  rise  to  a  new  and  final  development  of  patriarchal 
society.  The  smith,  apparently,  kept  in  his  own  hands  the 
primary  requisites  of  agricultural  life — the  iron  COULTER, 
or  plough-share  (which  superseded  the  clumsy  wooden 
plough,  made  by  adapting  a  forked  tree) ,  the  new  iron  sickle 
and  mattock,  in  later  days  the  harrow  and  wheel-rim.  But 
the  carpenter  got  from  the  smith  his  hammer,  chisel,  and 
nails,  wherewith  he  wrought  great  improvements  in  the 
ancient  art  of  working  in  wood;  the  tailor  his  shears  and 
needle;  the  cooper  his  hoops;  the  loriner  (or  leather  worker) 
his  knife;  and  so  on.  Even  the  older,  domestic,  arts  felt 
this  tendency  towards  specialisation,  though  they  owed 
little  to  the  smith's  craft;  and  we  get  the  appearance 
1  See  the  widespread  legends  of  the  Wayland  Smith. 


110   THE   STATE   AND   THE   NATION 

of  the  crafts  of  the  tiler,  or  thatcher,  the  weaver,  and  even 
the  baker;  though  the  last  long  remained  also  a  domestic 
industry.  One  of  the  highest  and  most  profoundly  revolu- 
tionary developments  of  iron  was  the  art  of  PRINTING 
in  metal  letters;  but  this,  of  course,  came  long  after  patri- 
archal society  had  been  superseded  by  a  later  stage  of 
civilisation. 

Meanwhile,  however,  the  development  of  craftsmanship 
had  given  rise  to  the  growth  of  TOWNS,  or  compact  centres 
of  population,  engaged  mainly  in  sedentary  pursuits,  though 
their  inhabitants  also  carried  on  the  more  primary  and 
indispensable  work  of  cattle-rearing  and  agriculture  as 
by-industries.  There  is  much  dispute  as  to  the  origin 
of  towns;  and  their  old  English  name  of  "burghs,"  or 
"boroughs,"  suggests  a  military  object,  for  a  burgh  is 
a  strong  or  fortified  place.  Be  this  as  it  may,  the  town  is 
everywhere  a  centre  of  craftsmanship,  a  place  to  which  the 
inhabitants  of  the  surrounding  pastoral  and  agricultural 
districts  resort  for  their  industrial  requirements,  as  well  as 
for  the  exchange  of  their  own  productions.  These  two 
purposes  give  us  the  key  to  the  development  of  towns. 

The  craftsmen  gathered  together  in  towns,  because  the 
great  increase  in  the  output  which  followed  from  the 
specialisation  which  their  crafts  produced,  made  it  im- 
possible for  each  village  to  maintain  a  complete  set.  of 
craftsmen.  But  this  meant  the  break-up  of  ancient  ties — 
the  gathering  around  the  common  hearth  or  the  village 
tree,  the  subordination  of  the  Kindred  to  the  House  Father 
or  group  of  elders,  the  strong  blood  bond,  with  its  system  of 
mutual  help  and  responsibility.  The  craftsman  of  the 
town  was,  in  a  modified  sense,  an  "outlaw,"  a  unit  expelled, 
or  at  least  severed,  from  the  ancient  law  of  the  tribe  or 
clan.  He  naturally  felt  himself  to  be  somewhat  helpless 
and  solitary;  and  he  proceeded  to  form  new  social  groups, 
as  nearly  as  possible  on  the  old  lines. 

This  is  the  meaning  of  the  GILD.  It  is  generally  assumed 
that  the  name,  in  Teutonic  speech,  is  derived  from  the 
word  geld  (gold),  the  gelt  of  old  English  speech,  which 


COMMERCE  AND  CRAFTSMANSHIP  111 

appears  In  the  wergild  (p.  81)  and  the  "Danegelt"  of  the 
tenth  and  eleventh  centuries;  and  it  is  suggested  that  the 
payment  of  a  common  money-contribution  was  the  basis  of 
the  organisation.  This  view  seems,  however,  to  substitute 
the  accidental  for  the  essential;  and  there  is  a  good  deal 
to  be  said  for  the  less  popular  view  which  finds  the  origin 
of  the  term  in  the  gait,  or  offering  to  the  tribal  gods  in 
gratitude  for  the  help  believed  to  have  been  rendered 
by  them  to  the  worshipper,  while  the  strongly  religious 
character  of  the  medieval  gilds  is  well  known. 

Putting  aside,  however,  the  precise  origin  of  the  term, 
we  may  note  that  the  earliest  form  assumed  by  the  gild 
movement  is  that  of  the  peace  or  frith  gild,  the  association 
formed  for  the  mutual  protection  of  its  members,  which 
carries  with  it,  almost  necessarily,  according  to  patriarchal 
ideas,  mutual  responsibility  for  their  misdeeds.  But,  be- 
fore very  long,  the  gild  assumed  a  strongly  economic  char- 
acter, based  however,  on  the  old  principles  of  patriarchal 
society.  All  the  members  of  the  gild  followed  the  same 
craft;  and  the  gild  was  primarily  concerned  with  regulating 
its  conduct.  Quality  of  goods,  standards  of  labour  and 
skill,  hours  of  work,  fixing  of  prices — all  these  were  the 
primary  concerns  of  the  CRAFT  GILD.  How  these  regula- 
tions were  evolved,  it  is  difficult  to  say.  Doubtless  the 
more  artificial  character  of  the  gild,  as  compared  with 
the  village  or  the  pastoral  group,  involved  a  more  con- 
scious effort  at  legislation,  or  formal  enactment  of  rules  of 
conduct.  But  these  would,  in  all  probability,  be  based  on 
the  practice  of  its  members,  unconsciously  evolved  and 
imitated;  and  the  well-known  expression,  "the  custom  of 
the  trade,"  is  a  significant  hint  of  the  resemblance  between 
the  gild  and  the  clan.  Then,  beyond  the  purely  economic 
activity  of  the  gild,  we  get  its  strongly  religious  and  social 
side — its  patron  saint  and  its  contribution  towards  the 
parish  church  in  the  way  of  stained  glass  and  other  adorn- 
ments, its  "elder  man"  (alderman)  or  chief,  who  is  the 
father  of  the  "brotherhood,"  its  schools  and  almshouses  for 
its  weaker  members,  its  frequent  feasts  or  common  meals, 


112   THE   STATE   AND   THE   NATION 

and  its  system  of  recruiting  by  apprenticeship,  which  is 
extraordinarily  like  adoption,  for  the  apprentice  lives  in  his 
master's  house,  feeds  at  his  table,  and,  ultimately,  suc- 
ceeds to  his  master's  workshop.  Those  who  have  studied 
the  completeness  which  the  gild  organisation  had  attained 
at  the  break-up  of  patriarchal  society,  will  recognise  that  it 
had  succeeded  in  creating,  alongside  the  older  group  based 
on  blood-kinship,  a  newer,  but  hardly  less  efficient  organ 
of  that  society,  determined  by  the  interests  of  a  common 
calling,  but  based  essentially  on  patriarchal  principles. 

The  same  principles  were  at  work  in  the  MERCHANT 
GILD.  This  has  been  a  puzzle  to  enquirers,  who  have  found 
a  difficulty  in  connecting  it  with  the  apparently  more 
modern  development  of  craft  gilds.  The  old  suggestion 
was,  that  the  earlier  and  less  specialised  craftsmen  of  a 
town  at  first  formed  a  single  merchant  gild,  which  after- 
wards split  up  into  craft  gilds,  as  specialisation  made 
progress.  With  all  respect,  this  is  an  impossible  suggestion. 
The  distinction  between  the  merchant  and  the  craftsman 
is  clear  from  the  first.  The  former  is  a  transporter,  con- 
cerned mainly,  if  not  exclusively,  with  EXCHANGE;  the 
latter  is,  primarily,  at  least,  engaged  in  PRODUCTION. 
Whether  there  was,  in  early  days,  a  body  of  native  mer- 
chants sufficiently  numerous  to  provide  each  town  with  a 
merchant  gild,  may  well  be  doubted.  At  any  rate,  the 
material  for  the  study  of  the  merchant  gild  is  trifling 
compared  with  the  mass  of  documents  (published  and 
unpublished)  concerning  the  craft  gilds.  Again,  we  notice 
that  such  evidence  of  merchant  gilds  as  there  is  comes 
mainly  from  port  towns — Paris,  Hamburg,  Beverley,  Hull, 
Dunwich,  Southampton — while  craft  gilds  were  obviously 
spread  all  over  the  land  in  towns,  and  even  penetrated  into 
the  country  villages.  Finally,  we  note  that  there  is  little, 
if  any,  evidence  that  the  craftsmen  lived  in  common  houses, 
though  they  met  for  discussion  and  feasting  at  the  common 
gild-hall  of  their  town  as  well  as  in  their  own  halls,  while 
even  the  scanty  evidence  that  we  have  of  the  merchant  gild 
shows  that  its  members  often  lived  in  a  common  house,  or 


COMMERCE  AND  CRAFTSMANSHIP  113 

hanse,  strongly  fortified,  monastic  in  character,1  looked 
upon  with  considerable  suspicion  by  the  bulk  of  the  towns- 
men, though  the  wiser  among  them  realised  its  value.  The 
inference  is  irresistible,  that  the  merchant  gild  was  a  gild  of 
FOREIGNERS,  only  tolerated  on  account  of  the  indirect  ad- 
vantages which  it  brought  to  the  town.  It  may  be  older 
than  the  craft  gilds;  it  may  have  had  a  good  deal  to  do  with 
attracting  the  craftsmen  to  the  town;  it  may  even  have 
occasionally  succeeded  in  dominating  them,  and  getting  a 
share,  or  even  the  whole,  of  the  control  of  the  town  into  its 
own  hands.  But  it  is  an  alien  institution;  and  it  is  not  the 
parent  of  the  CRAFT  GILDS. 

The  other  fundamental  aspect  of  the  ancient  borough  is 
the  MARKET.  If  our  view  is  at  all  correct,  there  would  be 
two  classes  of  persons  resorting  to  the  market,  viz.  the 
craftsmen,  whose  booths  would  be  permanent  workshops, 
or,  at  least,  stores  for  the  display  of  wares,  though  they 
might  also  work  at  their  houses,  each  in  its  respective 
ward  or  gild  section  of  the  town,  and  the  country  folk, 
with  their  temporary  stalls,  set  up  and  taken  down  on  each 
market  day.  For,  except  in  the  very  largest  towns,  there 
are  special  market  days,  fixed  by  ancient  custom,  or,  later, 
by  royal  charter;  and  the  peculiar  privileges  of  market 
law  only  apply  on  those  days,  and  only  to  transactions  in 
the  ordinary  wares  of  the  market,  sometimes  only  to  trans- 
actions done  under  the  special  witness  of  the  officials  of  the 
market.  Later  on,  the  charges  made  by  the  town  authori- 
ties for  the  use  of  the  market — the  "toll,"  and  the  "stall- 
age and  pickage" — were  an  important  part  of  the  municipal 
revenue. 

The  word  "market"  (marche,  markt)  recalls  the  special 
perils  and  difficulties  of  ancient  trade.  It  is  the  "mark," 
or  boundary,  of  the  various  districts  which  it  serves;  even 
in  the  town  itself,  it  is  usually  at  the  junction  of  the  ancient 

*An  almost  perfect  specimen  of  the  old  house  of  the  Hanseatic 
merchants  survives  at  Bergen ;  and  the  evidence  of  the  Hanse 
merchants  in  London  (the  Steelyard)  has  been  fully  described 
by  Lappenberg  (Geschichte  des  Hansischen  Stalhofes). 


114  THE   STATE   AND    THE   NATION 

townships  or  parishes  which,  in  the  case  of  the  bigger  towns, 
were  absorbed  by  its  growth.  This  is  a  survival  of  the 
ancient  nervousness  which,  as  we  have  seen,  was  carried  to 
extreme  length  in  the  case  of  the  negroes  of  Melli  (p.  104). 
Miss  Kingsley  states,  as  we  have  said,  that, x  in  primitive 
countries,  like  West  Africa,  the  "silent  trade"  survives,  even 
in  the  native  market,  and  that,  as  we  have  before  mentioned 
(p.  33),  the  protection  of  the  goods  exposed  for  sale  is  left 
to  the  seller's  Ju-ju,  or  special  fetish.  In  the  more  ad- 
vanced markets  of  the  West,  the  "peace  of  the  market"  was 
confided  to  the  Church,  whose  symbol,  the  market-cross,  is 
such  a  conspicuous  feature  of  English  country  towns,  or  to 
the  State,  as  in  the  little  Harz  towns,  where  the  Kaiser- 
bilder  symbolise  the  Imperial  protection.  And,  of  course, 
in  these  more  advanced  communities,  as  well  as  in  the 
bazaars  of  the  East,  the  chaffering  of  the  market  becomes 
distinctly  vocal;  and,  if  report  speaks  true,  it  includes  a 
good  deal  of  local  gossip  not  strictly  confined  to  business. 
But,  in  Miss  Kingsley's  account  of  the  native  market  in 
West  Africa,  there  is  another  feature  of  great  interest. 
She  observes  that,  alongside  the  goods  displayed  for  sale 
under  the  protection  of  the  Ju-ju,  are  to  be  found  little 
heaps  of  cowries  or  beans,  of  no  intrinsic  value,  evidently 
the  primitive  COINAGE  of  the  district,  which  signify  the 
PRICE  demanded  for  each  article.  This  is  again  a  result  of 
the  drawing  together  of  different,  but  not  entirely  alien 
groups,  in  the  area  of  the  market.  The  ancient  method  of 
barter  had  begun  to  show  its  obvious  inconveniences;  and 
a  common  standard  of  value  was  growing  up,  with  all  its 
inherent  possibilities.  In  the  ancient  Laws  of  the  Ripuarian 
Franks,  we  see  a  time  when  the  wergild  (p.  81)  was  still 
paid  in  goods,  though  the  Code  reckons  them  in  terms  of 
money.  "If  a  man  begins  to  pay  a  wergild,  let  him  hand 
over  a  horned  ox,  unblinded  and  healthy,  as  two  shillings. 
A  horned  cow  ...  as  three  shillings.  A  horse  ...  as 
twelve  shillings.  ...  A  sword  without  a  sheath  as  three 
shillings,"  and  so  on.  In  fact,  the  earlier  community,  the 
1  West  African  Studies,  p.  248. 


COMMERCE  AND  CRAFTSMANSHIP  115 

tribe  or  the  village,  had  no  need  of  money;  for  it  was 
worked  on  a  plan  which  was  alike  self-supporting  and  self- 
distributing.  But  the  exchange  of  goods  between  different 
communities  demands  a  "medium  of  exchange";  and  the 
cowrie  and  the  bean,  the  ox  and  the  sheep,  and  various 
other  objects,  serve  this  purpose  at  different  times.  Still, 
the  cowrie  and  bean  are,  after  all,  only  tokens;  they  cannot 
be  used  as  coins,  unless  the  traffickers  have  sufficient  faith 
in  one  another  to  accept  them  as  the  equivalent  of  goods. 
For  more  distant  traffic,  coinage  of  intrinsic  value  is  re- 
quired; and  so  the  precious  metals — gold,  silver,  bronze — 
are  used,  being  at  the  same  time  universally  valuable,  easily 
transported,  and  readily  divisible  into  various  denominations 
or  values,  though,  unfortunately,  the  crime  known  to  mod- 
erns as  "debasing  the  coinage"  was  early  and  widely  prac- 
tised, until  a  higher  authority  took  over  the  task  of  minting 
the  coins  and  giving  them  a  standard  value  (pp.  243-44). 
But  the  origin  of  many  coins  in  the  necessities  of  barter  is 
shown  by  the  fact  that,  in  their  earlier  forms,  they  bear 
the  impress  of  the  ox  or  sheep  for  which  they  were  exchange- 
able; and,  until  quite  recent  times,  there  was  in  familiar 
use  a  Frisian  coin  known  as  a  schaap  (sheep).  Moreover, 
before  even  the  precious  metals  assumed  their  present 
form  as  coins,  passing  by  tale  (counting),  they  went  through 
an  intermediate  stage  when  they  were  reckoned  by  weight. 
The  English  word  "pound,"  which  may  mean  either  a 
sovereign  or  a  pound  weight,  is  a  survival  of  this  stage; 
and  any  one  who  compares  the  lists  of  Hebrew  coins  and 
weights  to  be  found  in  a  good  annotated  Bible,  will  mark  a 
still  more  complete  parallel.  A  gerah  is  equally  a  twelve- 
grain  weight,  or  a  coin  worth  about  a  penny  and  a  third  of 
our  money.  A  bekah  is  a  quarter  of  an  ounce,  or  a  coin 
value  about  one  shilling  and  twopence;  a  shekel,  a  half 
ounce,  or  a  coin  worth  about  two  shillings  and  fourpence; 
and  so  on,  through  manehs  to  talents. 

Finally,  as  the  crown  of  the  new  order,  we  find  that  the 
gathering  together  of  the  gilds  in  the  town  results  in  a  new 
social  development  of  the  highest  importance,  the  CITY 


116  THE   STATE   AND   THE  NATION 

or  self-governing  municipality — the  "borough"  in  the  mod- 
ern English  sense.  Not  all  the  towns  achieved  this  dis- 
tinction; but,  where  gild  organisation  was  strongest,  it 
gradually  took  over  the  entire  management  of  urban  life, 
establishing  its  customs  as  the  local  law,  keeping  out- 
siders at  arm's  length,  levying  imposts  upon  its  inhabit- 
ants or  burgesses,  for  the  discharge  of  common  burdens, 
holding  its  own  courts  of  justice,  manning  its  own  walls, 
negotiating  on  equal  terms  with  kings  and  nobles,  and 
exacting  from  them  charters  of  liberties,  finally,  evolving 
a  system  of  government  under  an  elected  head  or  MAYOR, 
a  college  of  ALDERMEN  (the  heads  of  the  respective  gilds 
within  the  town),  and  a  COMMON  COUNCIL,  chosen  in  their 
ward  or  gild  meetings  by  the  ordinary  gildsmen.  The  plan 
was  not,  of  course,  uniform  for  all  cities;  because  each  had 
its  own  history,  its  own  struggles,  and  its  own  opportunities. 
But  the  self-governing  municipality,  or  borough,  was  the 
highest  achievement  of  patriarchal  principles;  and,  after 
a  dark  period  of  repression,  it  gallantly  took  up  the  struggle 
for  freedom  against  the  newer  ideas  of  absolute  rule  which 
produced  the  institution  of  the  State.  If  it  had  its  weak- 
nesses, as  it  undoubtedly  had,  it  triumphed  in  the  end;  for 
it  was  founded  on  the  undying  principles  of  brotherhood, 
freedom,  and  voluntary  co-operation,  as  opposed  to  sub- 
ordination, regimentation,  and  compulsory  service. 

Before  leaving  our  enquiry  into  the  nature  of  this  far- 
sweeping  patriarchal  organisation,  which  has  played  so 
large  a  part  in  the  shaping  of  human  society,  we  may, 
perhaps,  briefly  point  out  the  chief  features  in  which  it 
differed  from  the  stage  of  society  which  succeeded  it,  and 
with  which  we  are  instinctively  more  familiar. 

In  the  first  place,  then,  it  was,  unlike  the  modern  nation,, 
based  upon  kinship,  real  or  fictitious,  rather  than  on  locality; 
or,  to  put  it  in  another  way,  it  was  PERSONAL,  rather  than 
TERRITORIAL.  Of  course  this  was  only  completely  true  of 
its  earlier  stages.  In  the  pastoral  stage,  it  was,  broadly 
speaking,  entirely  true;  and  even  the  earlier  phases  of 


COM  MERGE  AND  CRAFTSMANSHIP  117 

agriculture  did  not  destroy  this  feature,  though  the  gradual 
adoption  of  INTENSIVE  AGRICULTURE,  and,  finally,  the 
settlement  of  the  craftsmen  in  towns  or  cities,  ultimately 
caused  it  to  disappear.  It  is  to  this  personal  conception  of 
society  that  we,  probably,  owe  the  somewhat  misty  "race 
theories"  of  modern  speculation.  Where  these  are  not  the 
instinctive  convictions  of  peoples  still  in  the  patriarchal 
stage*  they  are  survivals  from  that  stage. 

In  the  second  place,  as  an  almost  necessary  consequence 
of  its  personal  basis,  patriarchal  society  is  EXCLUSIVE.  It 
has  no  lust  for  numbers;  that  comes  with  the  military 
theory  of  the  "big  battalions."  Even  the  settled  village 
fights  strongly  again  the  homo  migrant,  or  wandering 
stranger,  who  wishes  to  settle>  within  the  sacred  circle. 
The  result  is  a  big  struggle,  of  which  we  shall  have  to  say 
something  later  on  (pp.  227-28).  Needless  to  say,  the 
gildsmen  of  the  town  were  strictly  jealous  of  their  privi- 
leges, and  would  admit  no  one  to  their  membership,  or 
brotherhood,  except  by  the  fictitious  descent  of  apprentice- 
ship, which  is  a  species  of  ADOPTION,  and  which,  in  all 
probability,  in  many  cases,  only  affirmed  a  natural  patern- 
ity, *  or,  at  the  least,  by  the  costly  process  of  "buying  his 
freedom."  The  notion  that  any  one  could  acquire  land 
where  he  happened  to  find  a  seller,  or  could  open  a  shop  in  a 
town  without  leave  asked,  would  have  horrified  a  patri- 
archal farmer  or  a  gildsman;  and  it  is  possible  that  the 
institutions  of  suburbs,  outside  the  ancient  city  walls,  is  due 
to  this  jealousy  in  excluding  strangers  from  the  privileged 
area  of  the  city. 

In  the  third  place,  patriarchal  society  is  not  COMPETITIVE. 
Its  life  was  based  on  CUSTOM,  binding  all  alike,  and  fixing 
the  scale  of  social  duties  and  rewards.  Ranks  and  classes 
indeed  there  were;  and  individuals  might  pass  from  one  to 
another,  but  only  by  custom  and  order.  A  son  under 
"power"  became  himself  a  House  Father  by  the  death  of 

1  It  has  been  suggested,  for  example,  that  the  hereditary  castes 
of  India  were  originally  based  on  distinctions  of  calling.  At  any 
rate,  there  is  a  strong  connection  between  the  two  things. 


118  THE   STATE   AND    THE   NATION 

his  ancestor;  an  apprentice  became,  on  completing  his 
service,  a  journeyman,  and,  in  due  course,  a  "master"  of 
his  craft,  ultimately,  it  might  be,  the  alderman  or  chief  of 
his  gild.  But  not  by  his  own  pushing  or  striving — still  less 
by  any  attempt  to  rival  or  thwart  his  fellow-gildsmen,  or 
to  take  advantage  of  their  weaknesses.  If  he  attempted  to 
set  up  a  "multiple  shop,"  he  was  pilloried  as  an  "engrosser" 
(it  is  sad  to  think  that  the  modern  harmless  necessary  "gro- 
cer" is  descended  from  a  member  of  the  criminal  classes) .  If 
he  attempted  to  "corner  the  market"  by  buying  up  supplies, 
he  was.  punished  as  a  "forestaller";  if  he  held  back  his 
goods  to  enhance  prices,  he  could  be  dealt  with  vigorously 
as  a  "regrater."  Nor  were  the  simpler  cases  of  bad  work- 
manship and  cheating  at  all  neglected  by  gild  action,  as  the 
maker  of  bad  bread  and  the  user  of  false  weights  found 
to  his  cost;  for  the  standards  of  these  were  fixed  by  the 
"assizes,"  or  solemn  sessions,  of  the  gilds. 

Finally,  patriarchal  society  is  characterised  by  a  feature 
for  which  it  is  very  hard  to  find  a  name,  without  being 
misunderstood.  If  one  were  to  call  it  CELLULAR,  that 
would,  perhaps,  best  convey  one's  meaning.  It  was  a  series 
of  concentric  groups,  beginning  with  the  single  household, 
ascending  to  the  village  or  gild,  finally  to  the  tribe  or  city. 
It  was  COMMUNAL,  not  necessarily  COMMUNISTIC.  Each 
man  was  a  member  of  a  definite  group,  beyond  which  his 
immediate  concerns  did  not  go;  and  each  group  was  allied 
by  ties  of  blood  or  sentiment  to  other  groups.  Interde- 
pendence, rather  than  independence,  was  the  ideal.  The 
modern  policy  of  laissez  faire,  or  individual  freedom — 
crudely  expressed  by  the  maxim:  "Every  man  for  himself, 
and  the  Devil  take  the  hindmost" — was  wholly  alien  from 
the  principles  of  patriarchal  society.  It  is,  in  fact,  the 
philosophy  of  anarchy;  and  patriarchal  society,  despite  its 
occasional  outbursts  of  violence,  was  very  far  from  anarchic. 
Its  danger  rather  was,  that  it  tended  to  repress  individual 
effort,  and  restrict  the  free  play  of  intelligence.  The  free- 
dom of  patriarchal  society  meant  the  freedom  of  the  group, 
rather  than  the  freedom  of  the  individual. 


PART  III 
POLITICAL  SOCIETY 


CHAPTER  IX 

THE  BERTH  OF  THE  STATE 

WE  now  enter  upon  the  third,  and,  for  the  present,  final 
stage  of  social  development,  in  which  all  the  more  advanced 
communities  of  the  world  are  living,  and  which  the  modern 
historian  generally  assumes  as  the  basis  of  his  study. 

If  we  put  aside,  as  too  obscure  for  safe  generalisation,  the 
causes  which  led  to  the  earlier  settlement  of  Europe  by  the 
Greek  and  Latin  tribes,  and  the  Gauls,  and  the  even  more 
mythical  traditions  of  an  earlier  migration  from  the  con- 
tinent of  Africa,  as  well  as  the  mysterious  circumstances 
attending  the  formation  of  the  great  ancient  Empires  of 
the  East — the  Chinese,  the  Egyptian,  the  Babylonian,  the 
Assyrian,  the  Persian,  and  the  Macedonian  Empires — and 
the  modern  and  brilliant  Oriental  Empire  of  Japan,  we 
know  for  a  fact,  that  the  modern  State  owes  its  origin,  as 
we  have  before  suggested,  to  the  immigrations  and  con- 
quests of  the  peoples  which,  in  what  we  call  the  "Dark 
Ages,"  broke  into  and  overthrew  the  vast  Empire  of  Rome. 
That  is  to  say,  in  the  formation  of  the  modern  State,  the 
conspicuous  immediate  causes  are  the  closely  related  facts 
of  MIGRATION  and  CONQUEST.  It  is  possible  to  conceive 
of  the  two  things  apart.  For  example,  we  may  have  a 
migration,  like  that  which  colonised  Australia  or  Western 
Canada,  in  which  the  element  of  forcible  conquest  is  almost 
absent;  or  we  may  have  a  conquest,  such  as  those  which 
created  the  Scandinavian  Kingdoms,  in  which  there  is 
little,  if  any,  trace  of  migration.  But,  in  the  great  majority 
of  cases,  the  two  facts  are  contemporaneous  and  intimately 
connected;  and  they  stamp  their  impress  on  the  whole 
of  political  institutions,  which  are  essentially  MILITARY 

121 


122   THE   STATE   AND   THE   NATION 

in  character.  For  it  is  obvious  that  a  migrating  host, 
unless  it  finds  before  it  an  absolutely  uninhabited  country, 
or  a  country  whose  inhabitants  are  too  timid  to  resist 
expropriation,  will  have  to  fight  for  its  existence;  and  it  is 
also  highly  improbable,  that  a  patriarchal  society,  with 
its  loose  federation  of  tribe,  clan,  and  household,  its  easy 
yoke  of  custom,  and  its  non-competitive  life  (pp.  117-18), 
will  submit  itself  to  the  severe  and  searching  control  of  the 
State,  without  a  desperate  struggle.  It  is,  therefore,  to 
improvements  in  the  art  of  warfare  that  we  must  look  for 
the  emergence  of  the  State. 

The  historian  Gibbon,  whose  knowledge  of  this  period 
was  profound  and  philosophical,  has  pointed  out  how  com- 
paratively easy  it  is,  for  a  leader  of  genius,  to  convert  a 
pastoral  tribe  into  an  invading  host.  No  fear  for  his  house 
and  standing  crops  ties  the  pastoralist  to  a  single  spot  of 
soil.  His  wealth  goes  with  him,  and  provides  him  with  food 
and  drink  on  the  march;  while,  in  the  actual  day  of  battle, 
it  is  hidden  away  in  the  folds  of  the  hills,  in  the  charge  of 
his  women,  till  the  danger  is  overpast.  His  movable  tent 
affords  him  shelter  on  the  march;  the  tent  has  been,  in  fact, 
until  but  yesterday,  a  conspicuous  feature  of  every  military 
campaign.  The  long  night-watches  in  the  fold  have  inured 
the  herdsman  and  the  shepherd  to  hardship  and  privation. 
He  has  learned  to  ride  the  camel  or  the  horse;  in  his  fights 
against  bear  and  wolf,  who  would  raid  his  flocks,  he  has 
practised  courage  and  watchfulness.  Accordingly,  we  are 
not  surprised  to  find,  that  most  of  the  western-tending 
migrants  who  broke  up  the  Roman  Empire — the  Arabs  of 
the  South,  the  Turks  of  the  East,  and  the  Teutons  of  the 
North — were  pastoral  peoples.  The  Arab,  save  in  the  nar- 
row confines  of  Arabia  Felix,  tilled  no  fields,  but  fed  his 
cattle  and  sheep  by  the  waters  of  the  oasis.  The  Turks 
of  the  Altai,  though  their  special  gift  appears  to  have  been 
an  early  acquaintance  with  the  possibilities  of  iron  (of  no 
small  value  in  military  affairs),  soon  assumed  the  leader- 
ship of  the  other  Tartar  tribes,  who  were  essentially  pastoral 
communities.  Caesar's  well-known  remark  concerning  the 


THE  BIRTH  OF  THE  STATE   123 

Teutonic  tribes  which  threatened  the  eastern  march  of 
Rome  is,  that  "they  do  not  practise  agriculture"  (agri- 
culturae  non  student) ;  though,  a  generation  later,  Tacitus, 
another  Roman  historian,  shows  us  agriculture  in  its  primi- 
tive stages  among  the  Germans.  But  the  most  striking 
proof  of  the  inferiority  of  pastoral  to  agricultural  com- 
munities, from  the  military  standpoint,  is  the  ease  with 
which  the  Arabs  overthrew  the  Egyptians,  the  corngrowers 
of  the  ancient  world,  the  Teutons  the  agricultural  provinces 
— Italy,  Gaul,  and  Spain — of  the  Roman  Empire,  and,  less 
known  but  even  more  striking,  the  victory  of  the  shepherd 
Tartars  (the  Turks,  the  Huns,  and  the  Bulgarians)  over  the 
more  civilised  but  less  military  agriculturists  of  the  Slav 
peoples — the  Poles,  the  Serbians,  the  Greeks,  and  the  ancient 
settlers  in  European  Russia. 

Another  very  striking  feature  of  the  conquests  of  this 
period  is  the  adoption,  by  the  migrating  hosts,  of  a  new 
type  of  religion — the  third,  or  universal  type,  to  which  we 
have  before  referred  (p.  61).  The  reason  of  this  is  not  far 
to  seek.  Success  in  battle  lies  with  the  big  battalions;  and, 
in  order  to  get  big  battalions,  it  was  necessary  to  weld 
together  related  but  more  or  less  independent  tribes  or 
clans.  There  is,  in  fact,  a  fairly  obvious,  but,  unfortunate- 
ly, obscure  stage,  between  the  patriarchal  and  the  political 
stages  of  social  evolution,  which  deserves,  in  the  light  of 
subsequent  developments,  more  consideration  than  it  has 
received.  This  is  the  stage  of  the  League  of  Clans.  It 
has  been  pointed  out  by  an  acute  and  learned  French  his- 
torian, the  late  M.  Fustel  de  Coulanges, x  that,  if  we 
compare  the  tribal  names  attributed  by  Caesar  and  Tacitus 
to  the  Teutonic  groups  which  they  regarded  with  consider- 
able apprehension,  with  the  names  which  appear,  four  or 
five  centuries  later,  in  those  valuable  monuments  of  anti- 
quity, the  Barbarian  Codes,  we  shall  notice  certain  sig- 
nificant changes.  The  later  names  are  more  comprehensive. 
The  "Franks,"  the  most  powerful  of  all  the  invading  groups, 
include  Salians,  Ripuarians,  Ampsivarians,  Sicambrians, 
* L'lnvasio*  Germanique,  pp.  297-9. 


124  THE   STATE  AND   THE   NATION 

Chamavians;  possibly,  Thuringians.  The  "Saxons"  include 
the  Chauci  and  the  Cherusci;  the  "Alemanns"  (allemands), 
the  Quadi  and  the  Hermonduri.  But  there  is  a  deeper 
significance  in  the  new  names.  They  are  MILITARY  in 
character.  The  "Frank"  is  a  wanderer  or  warrior;  the 
"Saxon"  a  swordsman  (sahsman) ;  the  "Alemann,"  a 
stranger,  i.e.  an  invader.  The  sub-groups  may  be  the  old 
pastoral  tribes;  the  larger  groups  are  more,  they  are  leagues 
of  warriors. 

But,  to  achieve  such  a  union,  in  the  face  of  religious  and 
social  differences,  must  have  been  no  easy  task.  As  we  have 
said,  patriarchal  society  is  easy-going,  ill  adapted  to  sub- 
mit to  the  discipline  and  precautions  necessary  to  success- 
ful military  operations.  Only  a  very  powerful  influence  will 
bring  about  this  result.  One  would  have  supposed,  that 
the  necessity  for  self-defence  would  have  been  such  an 
influence  towards  union  of  the  communities  attacked.  Un- 
happily, if  we  except  such  somewhat  doubtful  cases  as 
the  Armorican  League  in  central  Gaul,  which  offered  a 
certain  amount  of  feeble  resistance  to  the  invading  Franks 
of  Clovis,  there  is  very  little  evidence  of  any  such  result. 
On  the  other  hand,  it  is  abundantly  clear,  that  the  accept- 
ance of  a  new  religion  of  the  universal  and  proselytising 
type,  was  an  enormously  powerful  influence  towards  union 
of  the  invaders.  Under  the  banner  of  Mahomet,  with  his 
gospel  of  the  One  God,  and  his  fierce  alternatives  of  con- 
version, tribute,  or  the  sword,  the  Arab  tribes,  welded 
together  in  one  powerful  host,  fought  their  way  from  the 
Persian  Gulf  to  the  Atlantic,  and,  under  Mahmoud  of 
Ghazni,  carried  the  terror  of  Islam  into  the  plains  of  central 
India.  The  Turks,  who  had  imbibed  the  same  faith  from 
the  Abbaside  Caliphs  of  Baghdad,  swept  over  Asia  Minor, 
overthrew  the  tottering  remains  of  the  Roman  Empire  at 
Constantinople,  surged  through  the  Balkans,  and  hammered 
at  the  gates  of  Vienna.  The  Hungarians  and  the  Bulgarians 
broke  away  from  their  parent  stem,  and  accepted  different 
forms  of  Christianity;  but  most  of  the  Moslem  kingdoms 
still  retain  the  faith  of  the  Prophet.  The  turning-point 


THE    BIRTH   OF   THE   STATE       125 

in  the  fortunes  of  the  Teutonic  invaders  was  the  conversion 
of  the  Franks  to  Christianity,  followed  by  the  long  series  of 
missionary  wars  against  the  surrounding  "heathen,"  which 
at  last  seated  Charles  the  Great  on  his  Imperial  throne, 
and  gave  him  the  mastery  over  even  his  Christian  kindred. 
A  similar  conversion  of  the  scattered  groups  of  invaders 
in  England — the  East,  Middle,  South  and  West  Saxons, 
the  Jutes  (in  Kent),  the  East  and  Middle  Angles — was  a 
powerful  influence  towards  the  making  of  the  English  State, 
first  under  the  fluctuating  "Bretwaldaship"  of  a  federal 
league,  finally  under  the  unity  of  the  rule  of  Ecgberht. 

But  we  have  to  notice  one  significant,  though  often  over- 
looked, difference  between  the  ways  in  which  the  two  unify- 
ing religions  of  Christ  and  Mahomet  were  adopted.  Broadly 
speaking,  the  Mahometan  States  adhered  to  the  older, 
patriarchal  form,  in  which  the  offices  of  priest  and  secular 
ruler  were  in  the  same  hands.  Mahomet  was  both  High 
Priest  and  General.  His  successors,  in  all  Mahometan 
countries,  were  both  Caliphs  or  religious  chiefs,  and  Com- 
manders of  the  Faithful.  A  split  in  religious  doctrine  (and 
there  were  many  in  Mahometanism)  meant  also  a  split  in 
politics.  To  this  day,  religion  and  politics  in  Mahometan 
countries  are  one;  the  Koran  is  both  religious  guide  and 
secular  code.  Not  so  in  Christendom.  In  spite  of  the 
fact  that  European  Christianity,  in  strange  contrast  with  its 
Eastern  beginnings,  was  adopted  first  by  rulers  and  after- 
wards by  their  subjects,  that  Western  kings  received  their 
crowns  from  bishops,  and  that  a  close  alliance  existed, 
especially  in  the  Byzantine  survival  of  the  Roman  Empire, 
between  Church  and  State,  the  two  offices  of  King  and 
Priest  remained  always  distinct;  though  occasionally,  in 
feudal  days,  bishops  were  also  secular  potentates.  In  the 
councils  of  rulers,  no  doubt,  archbishops  and  bishops  sat 
side  by  side  with  earls  and  thanes;  and  some  of  the  Bar- 
barian Codes  mix  up  religion  and  law  in  a  manner  which 
we  should  think  strange.  Still,  the  distinction  was  always 
there;  and  it  tended  to  widen  as  the  years  went  on.  This 
tendency  was  by  no  means  always  urged  from  the  side  of 


126  THE   STATE   AND    THE   NATION 

the  State;  it  must  never  be  forgotten,  that  the  first  move- 
ment towards  separation  between  Church  and  State  in 
Western  Europe,  came  from  the  vigorous  and  successful 
efforts  of  Pope  Hildebrand  and  his  successors  down  to 
Innocent  III.,  in  the  eleventh,  twelfth,  and  thirteenth  cen- 
turies, and  that  the  Protestant  Reformation  did  but  ac- 
celerate the  tendency  from  the  other  side.  On  the  other 
hand,  a  split  in  politics  did  not,  as  in  the  countries  accept- 
ing the  creed  of  the  Prophet,  mean  a  split  in  religion.  The 
unwieldy  Empire  of  Charles  the  Great  split  into  the  modern 
States  of  France,  Germany,  the  Republics  of  Italy,  and  the 
petty  Kingdoms  of  Spain,  later  into  the  practically  inde- 
pendent States  of  Austria,  Bavaria,  Saxony,  Prussia,  and 
so  on.  Yet  the  unity  of  Christendom  remained,  until  it 
was  riven  by  the  religious  Reformation  of  the  sixteenth 
century;  though  its  unity  was,  very  significantly,  symbolised 
by  the  DOUBLE  headship  of  Pope  and  Holy  Roman  Emperor. 
The  full  meaning  of  this  difference  between  Christendom 
and  the  Mahometan  world  has,  perhaps,  never  been  studied; 
and  it  would  be  rash  to  attempt  to  summarise  in  a  phrase 
its  full  effect.  Nevertheless,  its  influence  in  setting  free  the 
v  idea  of  the  State  to  work  itself  out  in  many  directions,  can 
1  hardly  be  over-estimated.  For  religion  is,  and  always  must 
remain,  despite  the  desperate  attempts  to  make  it  local  at 
the  time  of  the  Reformation,  a  personal,  not  a  territorial 
matter;  while,  as  we  shall  see,  one  of  the  most  important 
effects  of  the  development  of  the  State  was  to  make  it 
TERRITORIAL.  In  fact,  the  sole  and  exclusive  authority  of 
the  State  within  a  defined  area,  the  basing  of  allegiance  and 
citizenship  on  birth  within  the  territory  of  a  State,  the  rigid 
demarcation  of  territorial  boundaries  between  different 
States,  are  among  the  essential  principles  of  State  life,  as  we 
understand  it.  Religion  remains  personal ;  politics  have  be- 
come territorial.  We  speak  of  the  religion  of  Christ,  but 
of  the  "law  of  the  land." 

Leaving,  however,  for  the  present,  the  consideration  of 
this  distinction,  we  return  to  another  marked  feature  re- 
sulting from  the  migrations  and  conquests  which  gave 


THE  BIRTH  OF  THE  STATE   127 

birth  to  the  State.    This  was  the  increasing  specialisation 
of  the  military  art. 

In  a  sense,  no  doubt,  a  patriarchal  community  recognises 
the  liability  of  all  physically  capable  members  of  the  com- 
munity to  fight  for  its  life  and  possessions  against  hostile 
attack,  under  the  leadership  of  its  tribal  chief.  This  idea 
may  be  seen  reappearing  in  the  universal  MILITIA  SYSTEM 
which  covered  Western  Europe  after  the  noise  of  the  in- 
vasions had  died  down,  which  was  revived  and  systematised 
by  Charles  the  Great  on  the  Continent,  and  by  the  English 
and  Scottish  Kings  in  their  systems  of  jyrd  and  wapenshaw. 
The  word  jyrd  is  suggestive.  It  is  the  going  ("faring") 
of  the  host  on  the  trek;  just  as  the  mil-es  (or  soldier)  is  the 
"thousand-goer"  of  the  Romans.  We  can,  in  fact,  hardly 
fail  to  see,  that  an  elementary  sense  of  prudence  would  in- 
volve strict  order  and  discipline  on  a  migration  through 
unknown  and  (presumably)  hostile  country,  which  would 
result  in  emphasising  these  military  qualities.  But  we 
have  plainer  evidence,  in  the  "blood  brothers"  who  formed 
the  bodyguard  of  Mahomet,  in  the  companions  (gesiths) 
of  the  Teutonic  leaders,  who  fought  with  stoical  fury  around 
their  chiefs,  so  picturesquely  described  by  Tacitus,  and  in 
the  "huscarls"  of  Knut,  that  there  grew  up,  in  the  midst  of 
the  patriarchal  society  of  the  tribe  and  clan,  a  new  nobility, 
chosen  for  their  personal  qualities  by  the  war-chief,  devoted 
to  him  alone,  dependent  on  his  bounty  for  their  maintenance 
in  peace,  and  practised  continually  in  the  exercises  of  war. 
These  men  were  the  predecessors  of  the  mailed  knight  of 
later  days,  the  earliest  professional  soldiers  of  the  new 
order,  and  for  long  its  mainstay  and  support.  We  see  them 
in  the  Barbarian  Codes,  protected  by  the  triple  wergild, 
carrying  out  the  orders  of  their  lord  with  ruthless  severity, 
gradually  replacing  the  older  blood-nobility  of  the  tribe  and 
clan — the  Agilolfings  of  Bavaria,  the  Asdings  of  the  Vandal 
tribes,  the  Aescings  of  Jutish  Kent,  the  Amali  and  the 
Balthi  of  the  Goths,  the  various  Ealdormen  of  the  Saxon 
shires.  They,  in  their  turn,  gathered  around  them  humbler 
followers,  the  men-at-arms  of  the  Norman  host,  who  fought 


around  them  in  the  battle,  as  they  around  their  lord.  To 
their  lords  they  were  servants,  the  "King's  thegns"  of 
whom  we  read  so  much  in  the  Old  English  Laws;  but,  to 
the  mass  of  the  community,  they  were  lords,  or,  at  least, 
leaders.  They  set  the  tone  of  society,  and  gradually  con- 
verted it  to  the  new  ways.  As  "counts"  and  land-rkas 
(rulers),  they  guarded  the  peace  of  their  districts:  The 
supreme  examples  of  the  new  profession  were  the  Mame- 
lukes of  Egypt,  and  the  Janissaries  of  the  Turkish  Sultans, 
those  captives  who,  by  an  infamous  compact  with  the  de- 
caying Eastern  Empire,  were  drawn  from  the  youth  of  the 
Balkan  peoples,  and  trained,  by  a  rigorous  discipline  in 
military  arts,  to  form  the  irresistible  armies  of  the  Turk. 
As  strangers  and  captives  from  alien  races,  they  had  no  part 
in  the  ancient  order  of  the  tribe  or  clan;  but  the  Turkish 
State  rested  upon  them,  as  a  house  upon  a  rock. 

At  the  head  of  this  new  military  order  stood,  of  course, 
the  supreme  chief  of  the  primitive  State,  the  KING.  As 
previously  hinted,  the  term  "King"  is  patriarchal;  the 
"King"  (cyning)  is  the  "child  of  the  kin."  But  the  office 
was  new;  though  it  had  taken  upon  itself  an  old  title.  It 
was  the  host-leader  of  the  migrating  band,  the  dux  of 
Tacitus,  the  hendinos  of  the  Burgundians,  the  heretoch  of 
the  English  invasions,  the  half-mythical  Hengists  and  Hor- 
sas,  who,  as  their  names  imply, *  are  symbolised  (in  a  fashion 
which  reminds  us  of  primitive  "totemism")  as  the  weapons 
of  war.  The  old  tribal  chiefs  owed  their  positions  to  their 
age,  their  noble  blood,  and  their  presumed  learning  in  the 
customs  of  the  tribe;  but,  even  before  the  great  change 
came,  we  see  the  beginning  of  the  new  movement  in  the 
Tartar  "Khan,"  or  war-lord,  the  Scottish  and  Irish  "Toi- 
sech,"  and  the  Welsh  "Dialwr"  or  champion;  chosen, 
doubtless,  simply  for  their  valour.  Probably  at  first  the 
host-leader  was  only  a  temporary  ruler,  like  the  Roman 
Dictator;  but  the  migration  and  conquest  made  him  an 
institution,  the  embodiment  of  the  new  State.  Where  war- 
like conditions  gave  place  to  settled  order  in  the  new  land, 
1  Hengist  =  battle-axe ;  Horsa  =  war-horse. 


THE  BIRTH  OF  THE  STATE   129 

he  gradually  lost  his  purely  military  character,  and  took 
on  more  and  more  of  the  tribal  chief,  in  place  of  the  old 
chief  who  had,  quite  likely,  not  shared  in  the  expedition, 
but  had  remained  in  the  home-land.  Thus,  for  example,  his 
office  became  largely  hereditary,  instead  of,  as  at  first, 
doubtless,  purely  elective,  by  a  sort  of  rough  popular  ac- 
clamation. But  it  was  long  before  its  elective  character 
was  wholly  lost;  arid  the  fiction  of  election  was  maintained 
to  the  end  in  the  case  of  the  Holy  Roman  Emperor,  the 
would-be  successor  of  the  Caesars  ("Kaisers")  of  Rome, 
and  the  faint  image  of  Charles  the  Great.  In  truth,  the 
typical  title  of  the  Head  of  the  State  is  not  that  of  "King," 
but  the  martial  title  of  "Caesar"  ("Kaiser,"  "Tsar"),  or  that 
of  "Emperor,"  i.e.  Imperator,  a  commander  of  armies. 

We  have  alluded  before  to  the  change  which  came  over 
the  character  of  society  in  the  TERRITORIAL  character  of 
the  State.  This  feature  was,  of  course,  not  fully  revealed 
until  the  fluctuations  of  the  migration  had  ceased,  and  the 
migrating  host  had  settled  down  finally  upon  its  conquered 
lands.  For  a  considerable  time,  the  rulers  of  Western 
Europe  continued  to  call  themselves  by  tribal  names — 
Kings  of  the  Franks,  of  the  Bavarians,  of  the  Visigoths, 
of  the  English,  and  so  on;  and  we  have  seen  (p.  83),  that 
there  was  a  considerable  period  in  European  history 
(roughly  speaking,  the  sixth  to  the  ninth  centuries)  when 
law  was  almost  as  personal  a  thing  as  religion.  But  then 
came  a  significant  change.  As  the  shifting  puzzle  of  the 
invasions  settled  down,  the  rulers  began  to  call  themselves 
after  their  territories,  not  after  their  peoples.  They  became 
"Kings  of  France,"  not  "of  the  French";  "Dukes  (Her- 
zogs)  of  Bavaria,"  not  "of  the  Bavarians";  "Kings  of 
England,"  not  "of  the  English."  This  change  was,  no 
doubt,  largely  due  to  the  gradual  fixing  of  boundaries 
which  had  taken  place,  largely  to  the  gradual  intermingling 
of  blood  among  the  various  peoples  which  owned  allegiance 
to  these  rulers,  but,  perhaps,  most  of  all  to  the  fact,  that 
the  newly  conquered  districts  were  inhabited  by  a  people 
deeply  committed  to  the  fixity  of  intensive  and  settled 


130   THE   STATE   AND   THE   NATION 

AGRICULTURE.  During  the  long  peace  of  the  Roman  Em- 
pire, Europe  had  become,  with  its  fertile  soil  and  temperate 
climate,  one  vast  agricultural  area,  broken  only  by  occa- 
sional forests  and  wastes.  This  was,  in  fact,  the  rich  prize 
which  had  tempted  the  invading  hosts.  Unable  or  unwill- 
ing themselves  to  practise  the  patient  arts  of  the  husband- 
man, but  aware  of,  or  at  least  suspecting,  the  wealth  stored 
up  in  the  vineyards  and  fields  of  Europe,  the  Eastern  tribes 
had  pressed  westward,  pushing  before  them  the  hardly 
more  civilised  Teutons,  and  settled  down,  like  a  swarm  of 
locusts,  on  their  rich  prey.  No  permanent  State  was  ever 
built,  unaided,  by  an  invading  host,  or  even  by  a  pastoral 
tribe;  the  State,  itself,  though,  as  we  have  said,  intensely 
military  in  character,  cannot  live  unless  it  imposes  itself 
on  a  solid  basis  of  permanent  agriculture,  which  will  supply 
its  needs  by  wealth  drawn  from  the  fruitful  soil. 

Thus  we  see  that  the  infant  State  was  really  dual  in 
character.  It  was,  as  we  have  said,  military  in  its  concep- 
tion; even  its  conquered  subjects  were  absorbed  into  it  by 
the  tie  of  military  obedience  and  service,  though  there  was 
an  intermediate  period  during  which  the  peasant,  or  villein 
(villager),  by  that  time  reduced  to  a  state  of  bondage,  was 
not  permitted  to  serve  in  the  host.  Ultimately,  however, 
his  value  was  recognised;  and  other  duties  were  found  for 
him  in  the  social  scheme.  This  was  the  great  unconscious 
problem  of  internal  politics  with  which  the  State  started 
upon  its  career;  and  the  way  in  which  it  was  solved  deter- 
mined the  character  of  early  political  institutions.  The 
various  attempts  to  solve  it,  and  the  long  struggle  which 
took  place  between  the  rival  principles  of  the  old  and  the 
new  society,  in  the  various  fields  of  social  development, 
will  be  the  theme  of  the  succeeding  chapters.  Before  con- 
cluding this  chapter,  however,  we  must  point  to  one  other 
feature  in  which  the  new  society,  the  State,  differed  from 
the  older  society  which  preceded  it. 

This  was  in  its  COMPETITIVE  character.  In  summarising 
(pp.  116-18)  the  leading  features  of  patriarchal  society,  we 
saw  that  it  was,  essentially,  based  on  custom,  not  on  indi- 


THE    BIRTH   OF   THE    STATE        131 

vidual  rivalry.  This  was  its  character,  in  pastoral  tribe, 
agricultural  village,  and  craft  gild.  A  custornary  society 
cannot  be  competitive;  because  in  it  each  man's  place  is 
ordered^  for  him,  his  duties  prescribed,  his  share  of  the 
produce  settled,  by  immemorial  use,  sanctioned  by  at  least 
quasi-religious  authority.  Traces  of  this  order  survived 
into  the  newer  epoch.  The  Roman  historian  remarks,  that 
the  Germans  of  his  day  fought  in  clans  and  families 
(families  et  propinquitates) ;  and  in  tribal  society  there  are 
all  sorts  of  claims  to  particular  positions  and  duties  on  the 
field  of  battle.  So  long  as  any  trace  of  patriarchal  arrange- 
ments survived  in  military  affairs,  for  example,  during  the 
League  of  Clans  period  formerly  alluded  to  (p.  123),  such 
claims  were,  doubtless,  often  heard. *  But  war  is  a  stern 
business;  a  host-leader  cannot  afford  to  be  sentimental. 
The  successful  warrior,  especially  the  successful  invader, 
is  the  man  who  knows  how  to  invent  new  devices  for  dealing 
with  new  dangers.  He  cannot  afford  to  rely  upon  custom 
and  tradition,  as  the  opponents  of  Bonaparte,  the  Man  of 
the  Revolution,  found  to  their  cost.  More  than  that,  he 
must  seek  eagerly  for  ability  wherever  it  shows  itself,  re- 
gardless of  rank  and  blood.  That  also  was  part  of  Napo- 
leon's success.  He  "knew  a  man  when  he  saw  him";  his 
judgment  of  individuals,  as  distinct  from  nations,  or  com- 
munities, was  almost  infallible.  His  marshals  and  generals 
were  drawn  from  the  ranks;  but  they  "made  hay"  of  the 
high-born  leaders  of  the  Imperial  armies,  which  had  almost 
forgotten  that  they  were  armies  at  all.  Thus  the  new 
State,  essentially  military  in  character,  owing  its  origin,  in 
fact,  largely  to  improvements  in  the  art  of  war,  started  with 
a  strongly  individualist  character,  by  pitting  one  of  its 
members  against  another,  praising  the  rivalry  of  comrades, 
each  of  whom  strove  to  exceed  the  other  in  deeds  of  valour, 
glorying  in  tournaments  and  other  fierce  competitions,  scat- 

*The  change  from  a  tribal  to  a  royal  army  is  probably  in- 
dicated in  the  story  of  Benhadad's  war  against  Ahab  (see  espe- 
cially I  Kings,  xx.  14,  17,  24).  The  result  was  not  a  success 
in  that  case;  but  for  that  there  were  reasons. 


132   THE   STATE   AND    THE   NATION 

tering  rewards  with  a  lavish  hand  as  the  prizes  of  distinction, 
utterly  contemptuous  of  all  appeals  to  custom,  and  claim- 
ing absolute  obedience  to  the  word  of  command.  No 
greater  contrast  can  well  be  imagined,  than  that  between 
patriarchal  and  early  political  society. 

Finally,  before  leaving  the  subject  of  the  primitive  State, 
it  is,  perhaps,  advisable  to  draw  attention  again  to  a  dis- 
tinction touched  upon  in  the  first  chapter  of  this  book. 
The  writer  there  insisted,  that  much  confusion  of  thought 
was  the  result  of  a  failure  to  distinguish  between  different 
things  which  were  often  called  by  the  same  names;  and  he 
suggested,  that  the  way  in  which  to  keep  a  true  and  level- 
headed attitude  towards  the  State,  was  to  think  and  speak 
of  it  as  an  INSTITUTION,  or  group  of  institutions — that  is  to 
say,  as  part  of  the  machinery  by  which  a  certain  type  of 
society,  called  a  Nation,  gets  its  political  work  done.  So, 
unquestionably,  the  State  has  been  in  Europe  for  many 
centuries;  so  it  has  always  been  in  North  America,  Aus- 
tralia, New  Zealand,  and  other  countries,  which  were 
colonised  by  settlers  to  whom  the  State  was  perfectly 
familiar  as  an  institution. 

But  this  was  not  so  with  the  peoples  who  laid  the  founda- 
tions of  modern  Europe.  They  were  peoples  in  an  early 
stage  of  development,  who  had  little  idea  of  the  future  of 
their  enterprises.  They  knew  that  they  were  warriors  on 
the  trek,  with  a  vision  of  great  cities  and  rich  lands  before 
them.  Probably  they  had  a  fairly  definite  idea  that,  after 
hard  fighting,  they  would  settle  down  under  some  arrange- 
ments which  would  give  them  a  good  time  at  the  expense 
of  their  conquered  subjects.  They  were  prepared  to  fight; 
they  were  not  prepared  to  work,  if  they  could  help  it.  The 
typical  scheme  of  their  settlement  is  that  of  the  Burgun- 
dians,  each  of  whose  warriors  was  quartered,  as  a  "guest," 
on  some  wealthy  provincial,  of  the  produce  of  whose  estate 
he  took  two-thirds,  leaving  the  remainder  to  his  host;  and, 
with  some  variations,  this  kind  of  arrangement  lasted,  all 
over  Continental  Europe,  during  what  we  call  the  "Dark 
Ages." 


THE   BIRTH   OF   THE   STATE  "    133 

It  is,  however,  one  of  the  distinguishing  marks  of  the 
invasions  of  Britain  by  the  bands  which  afterwards  became 
the  founders  of  England,  that  they  had  not  merely  to  con- 
quer, but  to  cultivate  the  invaded  country.  So  bitter  was 
the  struggle  between  them  and  the  earlier  inhabitants  of 
the  land,  that  these  latter  were  either  killed  off,  or  driven, 
slowly  and  stubbornly,  into  the  hills  and  valleys  of  Strath- 
clyde,  Wales,  and  Cornwall,  leaving  their  former  homes 
vacant  for  the  conquerors.  Much  future  history  lay  in  this 
fact;  meanwhile  it  is  sufficient  to  notice,  that  it  made  the 
basis  of  English  civilisation,  despite  its  superficial  differ- 
ences of  place  and  race,  more  homogeneous,  or  uniform, 
less  like  a  series  of  different  strata,  than  any  other  in 
Europe,  save  only  the  Scandinavian,  and  thus  made  of 
England,  despite  the  Norman  Conquest,  a  true  national 
kingdom,  whilst  other  European  communities  were  still 
travailing  in  the  birth-throes  of  the  State. 

Thus  it  is  justifiable  to  speak  of  the  primitive  State  as  a 
society;  for  it  was  simply  a  band  of  warriors  under  a 
military  leader — Clovis  and  his  "antrustions,"  Rurik  and 
his  Varangians  at  Moscow  and  Kieff,  Norman  William  and 
his  "barons."  But,  as  time  went  on,  and  the  host-leader 
became  the  King,  as  the  band  of  warriors  settled  down  as 
the  lords  and  rulers  of  their  fiefs,  as  hereditary  succession 
to  office  and  title  became  recognised,  as  the  gatherings 
around  the  host-leader  of  his  foremost  warriors,  in  planning 
the  campaign  or  battle,  developed  into  the  Council  of  Peers 
for  discussing  the  affairs  of  the  realm,  so  the  State  began 
to  assume,  in  varied  forms,  the  character  of  an  INSTITU- 
TION, a  piece  of  machinery  which  maintains  a  perpetual 
existence,  despite  the  deaths  of  kings  and  barons.  The 
State  has  never  been,  in  the  British  Empire,  at  least,  a 
CORPORATION  or  legal  person;  though  it  has  shared  many  of 
the  features  of  that  most  useful,  but  limited  notion.1  It 

1  In  the  light  of  subsequent  reflection,  the  writer  desires  to 
modify  the  expressions  used  on  p.  70  of  his  Law  and  Politics  in 
the  Middle  Ages.  They  are  not,  he  believes,  positively  wrong; 
but  they  may  be  misleading. 


134  THE   STATE   AND    THE   NATION 

has,  for  many  ages,  been  something  much  more  than  a 
PERSON,  natural  or  legal;  and  it  has  never  recognised  the 
limitations  which  restrict  the  powers  of  a  corporation. 
Sometimes  we  speak  of  the  Crown,  i.e.  the  office  inherited 
by  succeeding  Kings,  as  a  corporation;  though  this  is  a 
practice  of  doubtful  authority.  But  the  Crown,  though 
the  supreme  institution  of  the  State,  is  not  the  whole  of  the 
State,  at  any  rate  not  in  constitutionally  governed  coun- 
tries. The  famous  boast  of  Louis  XIV.  of  France — "L'£tat, 
c'est  moi" — might  have  been  true  of  the  France  of  the 
seventeenth  century.  Happily,  it  was  never  true  of  the 
British  Empire,  or  even  of  any  considerable  part  of  it;  and 
the  student  of  history  will  not  fail  to  note  that  the  answer 
to  the  boast  of  Louis  XIV.  was  the  French  Revolution. 
There  is,  however,  another,  and  much  more  modest  claim 
of  the  French  royalists,  which  exactly  expresses,  with  the 
usual  skill  of  the  French  tongue,  the  true  situation  of  the 
British  Empire.  "Le  rot  est  mort;  vive  le  rol" — The  King 
is  dead;  long  live  the  King.  The  monarch  is  both  a  human 
being  and  an  institution.  The  State  is  an  institution  only; 
its  character  changes,  but  it  never  dies,  save  in  the  throes  of 
social  dissolution. 

We  have  now  to  devote  a  brief  chapter  to  that  picturesque 
phase  of  development  which,  in  Western  Europe,  as  well 
as  in  some  Oriental  countries,  bridged  the  gap  between  the 
primitive,  purely  military  State,  and  the  modern  national 
State.  This  phase  we  call  by  the  vague  name  of  Feudalism. 


CHAPTER  X 

THE  STATE  AND  FEUDALISM 

THERE  is  no  phase  of  social  evolution  which  has  been  the 
topic  of  so  much  writing  and  speaking,  as  feudalism.  On 
the  one  hand,  it  has  been  the  subject  of  indiscriminate 
praise  by  those  who  regret  the  advent  of  the  conditions 
which  have  overthrown  it.  On  the  other,  it  has  been 
denounced  by  those  who  welcome  the  new  conditions,  and 
regard  them  as  infinitely  superior  to  the  institutions  which 
they  have  replaced.  On  the  one  hand,  we  have  appeals  to 
the  "chivalry"  of  the  feudal  system,  the  kindly  relations 
between  superior  and  inferior  which  it  is  supposed  to  have 
fostered,  and  the  courteous  and  picturesque  features  of 
the  life  which  it  produced.  On  the  other,  we  have  de- 
nunciations of  "feudal  arrogance,"  of  the  spirit  of  patronage 
in  the  social  superior  and  servility  in  the  inferior,  of  the 
principles  of  landownership,  the  relation  of  landlord  and 
tenant,  which  it  did  undoubtedly  establish.  By  some  his- 
torians, feudalism  is  regarded  as  the  ideal  of  political 
society,  binding  all  ranks  together  with  ordered  links  of 
protection  and  service.  Other  writers  denounce  it  as  a 
disintegrating  force,  which  tends  to  anarchy  and  the  decay 
of  the  State.  There  are  elements  of  truth  in  all  these  views; 
but  they  nearly  all  suffer  from  an  imperfect  grasp  of  the 
true  part  which  feudalism  has  played  in  the  development 
of  political  institutions.  And,  as  the  writer  of  these  pages 
believes  that  he  was  the  first,  in  this  country  at  any  rate, 
to  suggest  the  true  position  of  feudalism  in  the  scheme  of 
that  development,1  he  may,  perhaps,  be  permitted  to  re- 
peat that,  in  his  view,  feudalism  represents  a  compromise 

*Law  and  Politics  in  the  Middle  Ages,  pp.  310-11;  Short  His- 
tory of  Politics,  p.  80. 

135 


136   THE   STATE   AND    THE   NATION 

between  purely  patriarchal  and  purely  political  society.  It 
is  the  result  of  a  conflict  between  the  principles  of  the  two 
systems,  in  which  neither  is  completely  victorious;  and, 
historically  speaking,  it  bridges  the  gulf  between  the  two 
systems.  Naturally,  therefore,  a  study  of  it  comes  im- 
mediately after  a  description  of  that  powerful  institution, 
the  State,  which,  as  we  have  seen,  rises  on  the  horizon  of 
patriarchal  society,  and  threatens  to  destroy  it  altogether. 
But,  before  we  proceed  to  set  out  and  explain  the  dis- 
tinctive features  of  feudalism,  we  must  accept  a  challenge 
which  will,  undoubtedly,  be  thrown  down  by  those  critics 
who  deny  entirely  that  the  study  of  history  can  be  based 
on  evolutionary  principles.  It  will  be  said  by  these  critics, 
that  there  have  been  many  States  which  have  never  passed 
through  the  feudal  stage.  That  is,  of  course,  quite  true;  but 
again,  the  writer  must  ask  leave  to  point  out,  that  he  has 
never  claimed  to  enunciate  laws  of  social  development 
which  operate  with  the  mathematical  precision  of  inani- 
mate Nature.  The  moral  sciences,  unlike  the  physical 
sciences,  are  statements  only  of  normal,  or  average,  ten- 
dencies. They  are  true  in  the  given  circumstances,  though 
not  universally;  they  represent  tendencies,  not,  necessarily, 
accomplished  facts.  Thus,  a  writer  who  regards  feudalism 
as  a  normal  phase  of  political  development  is  unmoved  by 
the  undoubted  fact,  that  the  Grecian  and  Roman  States 
seem  never  to  have  passed  through  it.  For  he  remembers 
the  very  limited  area  of  the  largest  of  the  Greek  States,  and 
the  fact  that  the  Romans  had  thoroughly  worked  out  their 
conception  of  State  life,  both  in  theory  and  in  practice, 
whilst  they  were  little  more  than  a  people  occupying  a  few 
square  miles  of  territory  on  the  banks  of  the  Tiber;  and  he 
realises  that  the  influences  which  produce  feudalism  do  not 
operate  in  such  small  areas.  But  he  must  face  criticism 
from  another  quarter,  which  points  to  the  absence  of  feudal- 
ism in  such  vast  States  as  those  of  Arabia  under  the  Prophet, 
Alexander  of  Macedon,  Egypt,  the  Turkish  Empire,  and 
Persia,  with  their  satraps,  their  emirs,  their  beys,  and  their 
khedives.  Here  again,  however,  he  will  be  unmoved;  for  he 


THE   STATE   AND   FEUDALISM     137 

will  remember  that  it  is  just  these  vast  military  Empires, 
whose  governments  do  little  more  for  their  subjects  than 
levy  tribute  and  service,  that  have  contributed  little  to  the 
science  of  political  progress.  And  he  may  even  ask  himself, 
whether  the  subjects  of  these  barbaric  Empires  might  not 
have  enjoyed  a  happier  fate,  had  they  been  able  to  inter- 
pose, between  themselves  and  their  despotic  rulers,  some- 
thing of  the  mitigating  influences  of  feudalism.  At  any 
rate,  the  reader  will,  it  is  hoped,  feel,  that  a  phase  of 
society  which  has  played  so  great  a  part  as  feudalism  in  the 
histories  of  Western  Europe,  India,  and  Japan,  deserves 
more  than  a  passing  word. 

In  the  first  feature  of  FEUDALISM,  the  tie  of  military 
allegiance,  or  fealty,  we  shall  readily  recognise  the  influence 
of  the  new  order.  As  we  have  seen  (pp.  121-22),  the  es- 
sence of  the  State  is  military  discipline,  while  the  essence 
of  patriarchal  society  is  kinship,  real  or  fictitious.  All 
students  of  feudal  institutions  are  aware  of  the  prominence 
in  them  of  the  oath  of  fealty  or  allegiance,  the  forms  of 
which  were  carefully  regulated  by  law.  The  refusal  to 
render  it  was  the  surest  ground  of  suspicion;  the  breach  of 
it  was  regarded  as  the  supreme  crime,  the  crime  of  TREASON. 
And  no  punishment  was  too  severe  for  the  traitor,  or  be- 
trayer of  his  lord. 

But  the  tie,  as  its  alternative  name  of  ligeance,  or 
"loyalty,"  implies,  was  not  a  mere  one-sided  submission  to 
authority.  Submission  by  the  vassal  implied  protection 
by  the  lord.  Some  feudal  systems  even  recognised  a  formal 
right  of  repudiation  by  the  vassal  whose  lord  had  ceased  to 
protect  him.  It  was,  also,  a  strongly  personal  tie,  remind- 
ing us  of  the  intimate  connection  between  the  war-chief  and 
his  companions  or  gesitks  (p.  127).  In  the  later  days  of 
feudalism,  when  its  original  purpose  had  been  forgotten, 
a  seignory,  or  lordship,  could  be  treated  as  property,  and 
alienated  as  such  by  the  lord,  at  will.  But  all  feudal  sys- 
tems bear  traces  of  a  time  when  such  a  transfer  was  not 
possible  without  the  consent  of  the  vassal,  or  (as  he  was 
later  called)  the  "tenant";  which  consent  was  expressed  in 


138  THE   STATE  AND   THE   NATION 

the  attornment,  or  turning  over,  of  the  tenant  to  his  new  lord. 

Again,  the  essentially  military  character  of  feudalism  is 
plainly  marked  in  the  character  of  the  SERVICES  originally 
rendered  by  the  vassal  to  his  lord.  In  the  later  stages  of 
feudalism,  when  it  had  become  a  system  which  covered 
almost  the  whole  of  society,  these  services  were  of  various 
kinds — military,  civil,  agricultural,  and  even  religious.  But 
the  true  and  original  fief  or  FEUD  was,  as  historians  are 
never  tired  of  reminding  us,  granted  on  condition  of  the 
render  of  MILITARY  SERVICE,  or,  as  it  is  often  called, 
KNIGHT-SERVICE — for  the  aristocratic  character  of  early 
feudalism  is  marked  by  its  restriction  to  the  armed  horse- 
soldier,  the  chevalier  (from  cheval,  a  horse),  whence  its 
name  of  CHIVALRY.  At  first,  too,  the  amount  of  military 
service  which  the  lord  might  demand  from  his  vassal  was 
unlimited;  but  one  of  the  weak  points  of  feudalism,  from 
the  military  standpoint,  was,  that,  at  any  rate  in  Western 
Europe,  the  amount  of  such  service  which  could  be  de- 
manded of  the  vassal  became  strictly  limited  by  custom,  or 
even  by  express  law,  in  proportion  to  the  value  of  the 
fief  or  holding  in  respect  of  which  it  was  rendered.  This 
development  had,  in  fact,  as  much  as  anything  else  to  do 
with  the  decay  and  disappearance  of  feudalism.  For,  with 
the  improvements  in  the  art  of  war  resulting  from  the 
introduction  of  gunpowder  into  Europe  in  the  fourteenth 
century,  a  military  commander  came  to  have  less  and  less 
use  for  the  mailed  horseman,  whose  terms  of  service  rendered 
it  almost  impossible  for  him  to  make  use  of  the  new 
weapon,  and  who,  at  the  expiry  of  his  forty  days  of  service, 
calmly  abandoned  the  campaign  until  the  following  year. 

There  were  also  disputes  about  the  distance  to  which  the 
feudal  vassal  was  bound  to  follow  his  lord  to  war,  the 
kind  of  weapons  he  was  to  bring,  the  number  of  his  retainers 
or  men-at-arms,  and  so  forth,  which,  combined  with  the 
influences  previously  mentioned,  ultimately  destroyed  the 
value  of  the  feudal  array,  caused  the  kings  of  feudal  coun- 
tries to  bargain  with  their  vassals  for  money  payment 
("shield-money,"  scutage,  escuage)  in  lieu  of  personal  serv- 


THE    STATE   AND    FEUDALISM     139 

ice,  and  ultimately  led  to  the  establishment  of  paid  armies 
of  "soldiers,"  men  who  "took  the  shilling"  (solidus) .  Thus 
the  State  reverted  once  more  to  its  original  character  of 
absolute  military  rule;  but  the  intervening  stage  is  de- 
cidedly interesting,  for  it  shows  that  the  pure  military 
principle  of  unquestioned  obedience  to  command  could  not 
be  suddenly  imposed  by  the  State,  as  a  permanent  principle, 
upon  people  previously  unfamiliar  with  it.  In  that  respect 
then,  even  the  feudal  tie  of  allegiance,  essentially  military 
in  its  origin,  shows  the  influence  of  that  compromise  be- 
tween political  and  patriarchal  ideas,  of  which  feudalism 
was  the  expression. 

This  is  not  a  book  on  legal  history;  and  it  is  not  necessary 
to  discuss  here  those  other  incidents  of  the  feudal  relation- 
ships with  which  lawyers  are  familiar — the  aids,  or  casual 
payments  made  by  the  vassal  to  his  lord  on  occasions  of 
special  need,  the  wardship,  or  claim  by  the  lord  to  the 
custody  of  his  vassal's  infant  heir,  the  marriage,  or  right 
to  dispose  of  that  heir  in  matrimony,  to  the  lord's  profit. 
These  incidents  are  suggestive;  for  they  inevitably  recall 
some  of  the  features  of  patriarchal  organisation  (pp.  54-55). 
But  a  few  words  must  be  said  of  that  extension  of  feudal 
ideas  which,  as  has  been  previously  hinted  (p.  138),  applied 
them,  somewhat  clumsily,  to  the  non-military  elements  of 
society. 

This  extension  resulted  from  the  principle  known  as 
SUB-INFEUDATION.  Originally,  as  we  have  seen,  the  tie  of 
military  allegiance  was  a  direct  tie  between  the  host- 
leader,  or  King,  and  the  individual  warrior.  This  charac- 
teristic remained  strongly  marked  to  the  very  end  of  the 
feudal  system,  even  after  its  political  meaning  had  been 
lost,  and  it  had  become  merely  a  system  of  land  law.  Not 
merely  did  the  original  Crajs  (or  comites)  of  Charles  the 
Great  take  the  oath  of  fealty  to  him;  but,  even  in  much 
later  days,  a  marked  distinction  was  drawn,  irrespective 
of  wealth,  between  the  "tenants-in-chief"  of  the  Anglo- 
Norman  Kings,  and  their  under-vassals,  and  between  the 
un-mittelbar  (direct)  and  the  mittelbar  (subordinate)  vas- 


140  THE   STATE   AND   THE   NATION 

sals  of  the  German  Emperors,  between  the  fiefs  and  the  arriere- 
fiefs  held  of  the  French  Kings.  The  direct  tenants-in- 
chief,  or  "barons,"  alone  attended  the  councils  of  the  King; 
they  alone  took  the  oath  of  fealty  to  him;  and,  most  im- 
portant of  all,  they  alone,  in  most  countries,  could  be 
directly  summoned  by  the  King  to  serve  in  the  feudal  army. 
The  under-vassals,  those  knights  and  men-at-arms  who, 
in  imitation  of  the  King's  direct  vassals,  had  sworn  fealty 
to  the  latter,  recognised  only  the  summons,  or  "ban,"  of 
their  direct  lords.  As  the  phrase  ran:  "The  King  has  the 
ban,  but  not  the  arriere-ban"',  and,  though  this  maxim  was 
but  rarely  accepted,  fully  and  openly,  by  the  kings,  it  did, 
in  fact,  govern  the  practice  in  nearly  all  the  feudal  coun- 
tries of  Western  Europe,  especially  in  France,  where  it  was 
substantially  admitted  in  the  "Establishments,"  or  code  of 
laws,  attributed  to  St.  Louis  IX.,  in  the  thirteenth  century. 
The  consequences  of  this  maxim  were  serious.  Not 
merely  did  it  prevent  the  King  summoning  his  feudal  host 
secretly  and  promptly,  and  render  difficult  the  conduct  of 
his  campaign;  it  made  possible  what  was,  perhaps,  the 
greatest  scourge  of  the  feudal  epoch,  the  existence  of 
PRIVATE  WAR.  For,  if  the  under-vassal  would  only  ac- 
knowledge a  summons  to  the  host  from  his  immediate  lord, 
it  followed  naturally  that,  when  that  summons  came,  he  had 
to  answer  it  promptly,  without  any  too  severe  questioning 
about  its  object.  Again,  as  a  natural  consequence,  he  often 
found  himself  led  to  battle,  not  against  the  King's  enemies, 
but  against  the  vassals  of  some  other  lord,  with  whom  his 
own  had  a  quarrel,  or  even,  it  might  be,  against  the  King 
himself.  This  practice  inevitably  reminds  us  of  that  BLOOD- 
FEUD  system  between  rival  kindreds  which  patriarchal  so- 
ciety, as  we  have  seen  (p.  81),  struggled  so  hard  to  put 
down;  and  we  shall  hardly  do  wrong  in  ascribing  it  to  a 
survival  of  patriarchal  ideas.  But  its  continuance  was, 
of  course,  fatal  to  all  political  progress;  and  we  are  not 
surprised  to  find,  that  all  the  best  rulers  of  the  later 
Middle  Ages  strenuously  strove  to  suppress  it.  But  they 
were  only  partially  successful ;  and  the  feuds  of  Burgundian 


THE   STATE   AND    FEUDALISM     141 

and  Armagnac  devastated  France,  as  the  feuds  of  Welf  and 
Waiblingen  devastated  Germany,  and  the  feuds  of  Monta- 
gue and  Capulet  devastated  Verona,  till  the  Wars  of  Religion 
came  almost  as  a  relief.  Thus  we  can  realise  the  wisdom 
of  Norman  William  when,  in  the  England  of  1086,  he  sum- 
moned before  him  at  Sarum,  "all  the  landowning  men  of 
property  there  were  over  all  England,  whosesoever  men 
they  were"  and  made  them  take  direct  oaths  of  fealty  to 
himself;  for  he  thus  destroyed  the  most  dangerous  feature 
of  feudalism,  and  saved  his  newly  won  conquest  from  the 
fate  of  France  and  Germany.  Doubtless  there  were  days, 
as  in  the  weak  reign  of  Stephen,  when  the  cherished  right 
of  private  war  raised  its  head  in  England;  but  they  were, 
happily,  rare.  And  the  steadfast  adherence  of  the  strong 
Kings,  like  Henry  II.  and  Edward  I.,  to  the  policy  of  the 
Oath  of  Sarum,  had  much  to  do  with  the  early  and  striking 
development  of  political  institutions  in  England.  Hardly 
less  important  was  the  stress  laid  by  the  Anglo-Norman 
Kings  on  the  ancient  duty  of  universal  military  service  for 
defence — the  MILITIA  system  of  which  we  have  already 
spoken  (p.  127);  for  they  thereby  maintained,  alongside 
the  turbulent  feudal  array,  a  powerful  army  of  civilian 
troops,  dependent  directly  on  the  Crown,  marshalled  by 
the  Crown's  officers,  and,  by  its  very  composition,  opposed 
to  the  license  and  disturbance  of  private  war. 

We  have,  however,  suggested,  that  the  influence  of  feudal- 
ism spread  far  beyond  the  ranks  of  the  professional  soldier, 
until,  in  fact,  it  covered  almost  the  whole  of  social  arrange- 
ments; and  we  must  now  show  how  this  happened.  We  shall 
best  do  so  by  turning  to  the  second  of  the  great  conspicuous 
features  of  feudalism — the  BENEFICE,  or  fief  (jeudum), 
which  gives  its  name  to  the  system. 

Much  ingenuity  has  been  expended  in  speculating  as  to 
the  original  meaning  of  the  word  "fief"  or  "feud."  The 
latter  form  of  the  word  obviously  suggests  the  old  blood 
feud  (p.  80) ;  but  there  is  no  reason  to  believe  that  there 
is  any  direct  connection  between  the  two  uses  of  the  term, 
though  it  is  possible  that  they  may  have  a  common  origin. 


142   THE   STATE   AND    THE   NATION 

The  most  probable  suggestion  appears  to  be,  that  the  word 
is  derived  from  the  old  Teutonic  fioh  (the  modern  German 
Vieh),  meaning  "cattle";  and  this  view  again  reminds  us  of 
the  practice  described  in  the  ancient  Brehon  Laws  of  Ire- 
land (p.  100),  by  which  the  Bo-aire,  or  rich  lord  of  cattle, 
loaned  out  stock  to  his  Ceile,  or  dependents,  receiving  from 
them  part  of  the  produce  as  return  or  RENT.  And  it  may 
also  be,  that  the  blood  feud  derived  its  name  from  the 
common  crime  of  cattle-raiding,  which  would  certainly  be 
a  very  frequent  cause  of  it. 

At  any  rate,  the  process  described  in  the  Brehon  Laws 
agrees  strikingly  with  the  purpose  of  the  benefice  or  fief, 
the  essence  of  which  is  the  loan,  for  a  longer  or  shorter 
period,  of  a  valuable  object,  on  condition  of  some  render  for 
the  use  of  it.  It  is  the  common  view  that,  in  the  feudal 
system,  this  object  was  invariably  LAND;  but  that  is  a 
mistake,  especially  if  by  "land"  is  meant  landownership, 
in  the  modern  sense. 

For  it  seems  unquestionable,  that,  in  the  first  instance, 
the  fiefs  of  the  Carolingian  Empire  were  not  so  much  grants 
of  land,  as  grants  of  rule  or  jurisdiction.  The  first  Frankish 
Empire,  the  line  of  the  Merovingian  Kings,  had  fallen,  in 
a  hopeless  attempt  to  keep  up  the  centralised  government 
of  the  Roman  Empire,  of  which  it  pretended  itself  to  be 
the  direct  successor.  When  that  attempt  had  resulted  in 
a  break-up  of  the  Frankish  power,  the  restorers  of  the 
Frankish  rule,  Charles  Martel,  Pepin  the  Short,  and  his 
son,  Charles  the  Great  ("Charlemagne"),  had,  very  wisely, 
seen  the  hopelessness  of  the  attempt  to  revive  the  Roman 
system;  and,  though  they  established  certain  valuable  cen- 
tral institutions  (such,  for  example,  as  the  periodical  visits 
of  their  missi,  or  legates,  which  originated  the  system  of 
judicial  circuits),  they  did  not  attempt  to  rule  their  vast 
Empire,  which  stretched  from  the  Ebro  to  the  Danube, 
directly  from  their  capitals  at  Monza  or  Aix-la-Chapelle. 
They  entrusted  the  government  of  the  various  districts 
which  owned  their  sway  to  their  Herzogs  (Dukes),  Mark- 
graves  (Marquises  or  boundary-keepers),  or  their  Grafs, 


THE   STATE   AND   FEUDALISM     143 

their  companions  or  comites.  These  officials,  the  founders 
of  the  later  European  nobility,  were  the  real  rulers  of  the 
land;  and,  though  they  took  the  oath  of  fealty  to  their  over- 
lord, collected  his  dues,  and  furnished  soldiers  for  his  army, 
they  expected,  and  probably  received,  but  little  interference 
from  him,  so  long  as  their  districts  were  fairly  peaceful,  and 
the  due  quotas  in  men  and  money  were  rendered. 

At  first,  no  doubt,  these  appointments  were  intended  to 
be  of  a  temporary  nature,  at  most  for  the  joint  lives  of  the 
Emperor  and  his  grantees.  But  it  would,  obviously,  have 
been  very  difficult  and  impolitic  for  a  new  ruler  to  disturb 
the  appointments  of  his  predecessor  at  the  beginning  of 
his  reign;  to  have  done  so  would  have  been  certain  to 
provoke  the  doubtful  issue  of  a  rebellion.  On  the  other 
hand,  upon  the  death  of  a  distant  marquis  or  count,  the 
first  news  received  would  probably  be  in  the  form  of  a 
petition  from  one  of  his  sons,  asking  to  be  confirmed  in  his 
father's  office ;  and  though,  at  first,  a  consent  was,  probably, 
quite  optional  on  the  part  of  the  Emperor  or  King,  only 
given  on  payment  of  a  substantial  sum  (the  "relief"  of 
later  feudal  law  paid  by  an  heir  in  succeeding  to,  or  "taking 
up,"  his  ancestor's  estate),  yet,  as  time  wore  on,  it  would 
come  to  be  regarded  more  and  more  as  unusual  to  refuse 
such  a  petition  on  payment  of  a  reasonable  "relief."  Thus 
the  office,  or  fief,  of  the  count  or  marquis  would  become 
HEREDITARY,  and,  probably,  hereditary  by  way  of  PRIMO- 
GENITURE; though  the  practice  was  by  no  means  uniform 
in  this  respect,  especially  on  the  Continent  of  Europe, 
where  the  titles  of  the  nobility,  and,  under  a  system  of 
"appanages,"  even  their  estates,  long  remained  inheritable 
by  all  sons. 

By  these  means,  the  great  feudal  noble  found  himself  at 
the  head  of  a  considerable  district,  in  which  he  had,  prob- 
ably, large  "demesnes,"  or  private  estates  (possibly  derived 
from  the  original  plunder  of  the  Roman  Empire),  but  of 
which  he  was,  for  the  most  part,  rather  ruler  or  LORD, 
than  proprietor,  in  the  modern  sense.  Quite  naturally,  he 
endeavoured  to  imitate  the  process  among  his  subordinates, 


144  THE   STATE   AND   THE   NATION 

by  the  process  of  sub-infeudation,  already  described  (p. 
139).  In  many  cases,  no  doubt,  these  subordinates  were 
his  own  companions  or  followers — his  "viscounts"  (vice- 
comites)  or  viddmes  (vice-domini,  under-lords) ;  in  other 
frequent  cases,  he  would  grant  by  charter,  or,  as  the  Eng- 
lish phrase  put  it,  by  "book"  (boc),  districts  to  one  of 
those  great  monasteries  which,  founded  in  the  dark  days  of 
the  break-up  of  the  Roman  Empire,  had  since  emerged  from 
their  obscurity,  acquired  vast  wealth  by  their  enlightened 
systems  of  sheep-farming  and  agriculture,  and  become  noted 
for  their  admirable  management  of  the  estates  conferred 
upon  them  by  the  piety  of  wealthy  landowners.  Or,  finally, 
he  would  persuade  the  petty  lords  of  villages  (pp.  96-98) 
to  COMMEND  themselves  to  him,  i.e.  to  make  a  fictitious 
surrender  of  their  lordships  to  him,  to  be  received  back  as 
fiefs,  or  benefices,  on  conditions  of  fealty  and  service.  By 
such  processes,  repeated  in  successive  gradations,  arose 
the  great  hierarchy  of  feudal  estates,  or  holdings  of  land 
and  jurisdiction  by  real  or  feigned  grant  from  a  superior, 
tenable  only  on  condition  of  the  regular  render  of  fealty  and 
service,  and  liable  to  FORFEITURE  on  failure  of  either. 
Thus  was  evolved  the  great  doctrine  of  LAND  TENURE, 
worked  out  with  special  completeness  in  England,  until  al- 
though, as  we  have  seen  (p.  141),  England  was  less  thor- 
oughly feudalised  in  one  important  respect  than  the  Con- 
tinent, yet,  in  some  others,  it  was,  at  any  rate,  so  far  as 
legal  theory  was  concerned,  the  most  completely  feudalised 
country  in  Christendom.  For  there,  so  late  even  as  the 
fifteenth  century,  a  great  English  lawyer  could  boldly  claim 
that  the  maxim:  "No  lord,  no  land"  (nul  terre  sans  sei- 
gneur) was  universally  true  in  his  country,  though  it  was  by 
no  means  universally  true  in  the  land  of  its  birth,  or  even  in 
Germany,  where,  alongside  the  feudal  estate,  or  fief,  there 
existed  the  alod  (alien),  the  old  patriarchal  allotment  of 
the  village  peasant — his  FOLKLAND,  *  or  land  held  by 

1  The  theory  of  the  nineteenth-century  writers,  that  "folkland" 
means  the  land  of  the  "nation,"  or  folk,  has  been  shown  to  be 
baseless. 


THE   STATE   AND   FEUDALISM     145 

ancient  customary  folk-law,  as  opposed  to  the  BOCLAND,  or 
land  granted  by  "book"  or  charter,  on  terms  of  feudal 
holding. 

But,  as  has  been  hinted,  one  striking  feature  of  feudalism 
was,  that  it  did  not  cease  with  the  military  class.  Its  influ- 
ence was  extended  throughout  the  whole  of  social  life. 
In  addition  to  the  fief  noble  of  France,  the  Edelgut  and 
Rittergut  of  Germany,  and  the  "knight's  fee"  of  England, 
we  have  the  holdings  of  the  French  roturier  and  the  English 
"socage  tenant."  Mysterious  as  is  the  precise  meaning  of 
the  latter  term, *  we  know  that  the  socage^  tenant  was  a 
"free-holder,"  a  man  whose  holding  was  protected,  not 
merely  by  the  custom  of  the  manor  (p.  77),  but,  like  the 
knight's  fee,  by  the  common  law  of  the  King's  Courts. 
These  men  were,  probably,  the  descendants  of  the  old  Ceile, 
or  stockholders,  who  formed  a  dependent  but  substantial 
class  between  the  "kindly  tenants"  and  the  serfs  or  unfree 
men.  Either  by  "commendation"  (p.  144),  or  by  some 
more  forcible  process,  these  men  were  worked  into  the 
feudal  scheme.  Then  came  the  great  mass  of  the  peasantry, 
the  actual  tillers  of  the  soil — the  "copyholders"  or  custom- 
ary tenants  of  English  law,  the  Bauer  of  Germany,  the 
main-mortables  of  France.  Their  only  protection,  as  re- 
gards their  holdings,  was  the  manorial  court  of  their  lord, 
with  its  local  custom,  which  denned  the  services,  mostly  of 
an  agricultural  character,  which  they  owed  to  their  lords. 
In  the  early  days  of  feudalism,  they  were  personally  unfree, 
bound  to  the  soil,  subject  to  many  disabilities,  such  as  the 
merchet,  or  bridal  fee,  payable  to  their  lords  on  the  mar- 
riage of  their  neifs  (natives),  or  daughters  born  on  the  soil. 
Probably,  at  first,  they  were  not  regarded  as  "tenants" 
at  all;  but,  gradually,  their  personal  status  rose,  and  the 
servile  taint  was  transferred  to  their  estates,  which  were 
then  said  to  be  held  "at  the  will  of  the  lord  according  to 
the  custom  of  the  manor,  and  at  the  customary  works  and 

*The  term  "soc"  (soke)  means  jurisdiction;  but  whether  the 
"socager"  was  a  man  having  jurisdiction,  or  a  man  under  juris- 
diction, seems  to  be  obscure. 


146  THE   STATE   AND   THE  NATION 

services,"  later  commuted  for  a  "quit,"  or  compounded, 
rent.1  Thus  the  ancient  village  community  became  the 
MANOR  of  the  later  Middle  Ages,  with  its  hierarchy  of 
ranks  and  courts. 

Further,  the  principles  of  feudalism  were  extended  to 
the  clergy,  a  numerous  and  wealthy  class  in  feudal  days. 
The  great  ecclesiastics,  the  bishops  and  the  heads  of  the 
religious  houses,  were  direct  tenants-in-chief  of  the  Crown; 
and,  as  we  have  seen,  often  received  grants  of  jurisdiction 
in  return  for  military  service,  not,  of  course,  necessarily 
rendered  in  person,  though  some  of  the  more  martial  pre- 
lates showed  little  reluctance  to  appear  in  arms.  But 
many  of  the  clerical  estates  had  really  been  given  in  "free 
alms"  by  pious  donors;  and  these  were  with  difficulty 
brought  into  the  feudal  scheme  by  the  fictitious  tenancy  of 
frankalmoign,  in  which  the  duty  of  the  vassal  was  dis- 
charged by  a  general  care  for  the  spiritual  welfare  of  the 
lord  or  donor.  The  same  idea  was  extended  to  the  estates 
of  the  "inferior"  clergy,  whose  "benefices"  were  supposed 
to  be  held  of  their  patrons,  lay  or  ecclesiastical;  the  Chris- 
tian law  against  simony  forbidding  them  to  render  material 
services  in  return  for  their  endowments.  The  famous 
"contest  about  investitures,"  which  raged  between  Church 
and  State  in  the  eleventh  and  twelfth  centuries,  turned  on 
this  point,  and  was  accentuated  by  a  steady  attempt,  on  the 
part  of  the  great  prelates,  to  convert  their  military  estates 
into  the  easier  tenure  of  frankalmoign.  To  this  day,  the 
conferring  of  a  "benefice"  on  a  parish  clergyman,  no  less 
than  the  appointment  to  a  bishopric,  is  full  of  archaic  sur- 
vivals of  feudalism. 

Finally,  though  with  less  completeness,  feudal  principles 
made  their  way  into  industrial  life.  Broadly  speaking,  the 
internal  affairs  of  the  gilds  (pp.  111-12)  were  beyond  their 
influence.  But  the  municipal  life,  which,  as  we  have  seen 

TThe  great  event  which  completed,  or,  at  least,  powerfully 
stimulated,  this  tendency,  was  the  Black  Death  of  the  fourteenth 
century,  which  swept  away  huge  numbers,  and  broke  up  the 
manorial  system  of  forced  labour. 


THE   STATE   AND   FEUDALISM     147 

(p.  116),  was  often  built  up  on  the  basis  of  the  gild  system, 
was  brought  within  it.  The  cherished  aim  of  every  industrial 
town,  to  have  a  commune,  or  corporation,  that  guarantee 
of  self-government,  was  jealously  watched  by  the  Kings 
and  their  great  vassals;  and  could  only  be  effectively  se- 
cured by  the  grant  of  a  CHARTER,  for  which  a  substantial 
rent,  known  as  the  "ferm  of  the  borough"  (firma  burgi), 
was  steadily  exacted.  Any  failure  to  pay  it  resulted  in  a 
forfeiture  of  the  cherished  privileges  which  it  conveyed; 
any  breach  of  its  terms  by  the  burgesses,  much  more  any 
display  of  disloyalty  to  Crown  or  lord,  resulted  promptly 
in  its  withdrawal,  and  a  revival  of  the  ancient  claim  to 
tallage,  or  tax  without  mercy,  its  burgesses,  as  serfs  who 
had  no  legal  rights.  On  the  other  hand,  by  the  offer  of  an 
increase  of  rent  or  "ferm,"  the  borough  might  secure  an 
improved  charter,  giving  it  more  powers  of  self-government, 
more  security  for  its  ancient  customs,  more  privileges 
against  the  "foreigner"  or  outsider.  Thus,  under  feudalism, 
the  vigorous  and  powerful  towns  flourished,  even  if  the 
feebler  and  poorer  decayed.  The  wealthy  borough  was,  of 
course,  an  even  more  tempting,  if  less  easy,  prey  to  the 
despoiler,  than  the  plodding  farmer.  But,  secure  in  pro- 
tection of  King  or  lord,  who,  if  he  often  attempted  to  plun- 
der his  burgesses,  for  that  very  reason  refused  to  let  any  one 
else  do  it,  the  chartered  boroughs,  on  the  whole,  realised 
the  benefits,  rather  than  the  evils,  of  feudalism.  Some, 
like  the  Italian  Republics  of  Venice  and  Florence,  even 
threw  off  the  feudal  yoke  altogether,  and  maintained  a 
sturdy  defiance  of  their  former  lords.  Others,  like  Milan 
and  Padua,  converted  their  "Dukes"  into  quasi-paternal 
rulers,  who  strongly  recall  the  tribal  patriarchs. 

Leaving  till  a  later  stage  the  judicial  side  of  feudalism 
(p.  170),  one  of  its  strongest  features,  we  may  now  en- 
deavour to  sum  up,  very  briefly,  the  merits  and  defects  of 
the  feudal  system. 

In  the  first  place,  as  has  been  before  suggested,  it  bridged 
over  a  somewhat  awkward  gulf  between  patriarchal  and 
political  society.  Owing  to  the  circumstances  of  the  bar- 


148  THE   STATE   AND    THE   NATION 

barian  invasions — the  example  of  the  Roman  Empire,  and 
the  brilliant  conquests  of  the  Franks — the  first  attempts 
at  State  life  in  Western  Europe  were  too  ambitious  to  suc- 
ceed. Despite  the  excellent  roads  of  the  Romans,  many 
of  which  fell  into  decay  during  the  period  of  disturbance, 
the  mere  physical  difficulties  of  communication  rendered 
effective  control  of  a  vast  Empire  from  headquarters  im- 
possible. The  first  Frankish  Empire,  as  we  said  (p.  142), 
perished  in  the  attempt;  and  the  second,  that  of  Charles 
the  Great,  only  saved  itself  by  a  resort  to  feudalism.  The 
smaller  vassals  of  Charles  and  his  successors,  the  counts  and 
viscounts,  even  the  marquises,  were,  at  first,  State  officials; 
but  the  greater  potentates,  the  Dukes  of  Bavaria  and 
Swabia,  of  Burgundy  and  Aquitaine,  of  Lombardy  and 
Benevento,  were  really  the  old  tribal  chiefs  in  a  new  dress, 
and  mark  the  connection  between  patriarchal  and  feudal 
institutions.  Their  adherence,  and  that  of  their  tribes,  to 
the  central  authority,  could  hardly  have  been  secured  in 
any  other  way.  In  the  small  kingdom  of  England,  the 
difficulties  were  not  so  great;  and  that  is  one  reason  why 
feudalism  in  England  was,  so  far  as  its  political  influence 
was  concerned,  a  comparatively  small  thing.  So  also,  when 
the  unwieldy  Empire  of  the  Franks  at  length  broke  up  into 
the  smaller  independent  States  of  France,  Germany,  Lom- 
bardy, Aragon,  Castile,  and  so  on,  the  feudal  system  be- 
came an  anachronism,  a  real  disintegrating  force,  which 
the  rulers  of  these  States  strove,  with  only  partial  success, 
to  put  down.  As  with  all  institutions,  its  merits  depended 
largely  on  circumstances. 

Undoubtedly,  also,  feudalism  tended  to  maintain,  and 
even  to  accentuate,  the  class  distinctions,  with  their  priv- 
ileges and  disabilities,  which  it  inherited  from  the  older 
systems.  Very  marked  is  this  tendency  in  the  privileges 
of  the  military  class,  especially  in  the  exemption  from 
taxation  which  the  nobility  enjoyed  in  France  and  Germany, 
long  after  the  reasons  which  originally  justified  it  had 
passed  away.  In  theory,  the  service  the  nobles  rendered 
to  the  State  was  military;  it  was  argued  that  it  was  unfair 


THE   STATE   AND    FEUDALISM     149 

to  expect  them  to  pay  taxes  as  well.  Such  an  example 
spreads;  and  we  are  not  surprised  to  find  the  clergy  claim- 
ing a  similar  exemption.  In  England,  the  bold  policy  of 
William  the  Conqueror  (p.  141)  and  his  successors,  cut  the 
ground  from  beneath  this  argument.  Consequently,  it  was 
easier  there  for  the  Crown  to  resist  a  similar  claim  by  the 
clergy.  The  feudal  privilege  also  enabled  the  Continental 
nobility  to  claim  the  exclusive  control  of  the  commissioned 
offices  in  the  army,  long  after  the  rank  and  file  of  the  army 
had  come  to  be  composed  of  mercenaries,  or,  later  still,  of 
national  levies.  The  dangers  of  feudalism  in  the  matter  of 
private  war  have  already  been  explained  (p.  140). 

Finally,  it  is  extremely  difficult  to  say  how  far  feudalism 
can  justly  claim  any  of  those  refining  and  artistic  results 
which  we  vaguely  class  together  under  the  name  of  CHIV- 
ALRY. In  so  far  as  it  succeeded  in  maintaining  order  dur- 
ing a  period  prone  to  anarchy,  it  did,  undoubtedly,  smooth 
the  path  of  the  priest,  the  musician,  and  the  poet;  though 
it  did  so  at  the  cost  of  maintaining  serfdom,  and,  thereby, 
of  accentuating  the  class  distinctions  above  alluded  to. 
By  its  tournaments  and  martial  display,  its  system  of  her- 
aldry, its  affection  for  brilliant  armour  and  weapons,  its 
inculcation  of  courage  and  loyalty,  it  did,  apparently,  es- 
tablish a  picturesque  ceremonial,  and  a  code  of  honour, 
which  were  favourable  to  the  spread  of  poetry,  history, 
painting,  and  the  finer  crafts.  Yet  there  is  a  somewhat  ar- 
tificial and  superficial  air  about  the  artistic  side  of  feudal- 
ism, as  if  the  artists  themselves  only  half  believed  in  their 
work.  We  may  well  question,  whether  the  future  of  art 
and  literature  was  not  safer  in  the  hands  of  the  painters 
and  sculptors  of  the  Florentine  Republic  and  the  Nether- 
land  towns,  the  poets  of  the  country-side,  like  Piers  Plow- 
man and  Walther  van  der  Vogelweide,  and  the  outlawed 
preachers,  such  as  John  Ball,  Wiklif,  and  Hus,  than  with 
the  heralds  and  the  jongleurs,  the  courtly  bishops  and  ro- 
mancers, who  crowded  the  castles  of  the  feudal  nobles.  It 
is  a  terribly  sarcastic  picture  which  the  author  of  Don 
Quixote  draws  of  the  last  days  of  the  feudal  system. 


CHAPTER  XI 

EARLY  POLITICAL   INSTITUTIONS 

WE  have  now  seen  how  the  State  in  its  earliest  shape — 
that  of  a  war-chief  resting  for  support  on  a  band  of  pro- 
fessional warriors  whom  he  had  led  to  conquest — had  been, 
at  any  rate  in  Western  Europe,  unable  to  establish  itself 
permanently  in  that  simple  form.  After  the  immediate 
strain  of  the  conquest  was  over,  and  the  exceptional  quali- 
ties of  the  host-leader  had  ceased  to  be  essential  to  the 
safety  of  his  followers,  these  latter  had  insisted  on  being 
allowed  to  deal  with  their  plunder  more  or  less  as  they 
liked;  while  the  survival  of  the  older  type  of  society  among 
the  conquered  inhabitants  had  also  been  a  formidable  ob- 
stacle to  the  continued  exercise  of  purely  military  authority 
by  the  nominal  ruler.  The  result  has  been  -seen  in  that 
curious  system  of  compromise  known  as  feudalism,  which 
we  have  attempted  to  describe  in  the  last  preceding  chap- 
ter; and  we  cannot  altogether  regret  this  development,  for, 
as  we  shall  see  later,  it  did  undoubtedly  contribute  to  the 
conception  of  the  State  in  Western  Europe  many  useful 
elements,  which  have  been  lacking  in  the  more  rudimentary 
States  of  the  East. 

Nevertheless,  the  usefulness  of  feudalism  has  narrow 
limits;  and  it  is  difficult,  if  not  impossible,  for  real  political 
progress  to  be  made  while  feudal  ideas  hold  sway.  We 
have  now  to  see  how,  in  Western  Europe,  the  birthplace  of 
modern  political  institutions,  the  State  revived  in  its  older 
form,  definitely  challenged  the  continuance  of  the  feudal 
compromise,  finally  overthrew  it,  and  started  on  that  career 
which  has  made  it  the  most  powerful,  if  not  the  most  benefi- 
cent, factor  in  the  social  life  of  to-day. 

150 


EARLY   POLITICAL   INSTITUTIONS     151 

From  a  political  standpoint,  the  greatest  failure  of  feu- 
dalism was  its  inability  to  perform  the  task  which  it  was 
specially  organised  to  achieve — viz.,  to  protect  the  com- 
munity from  external  attack  and  internal  disturbance.  This 
task  was,  as  we  have  seen  (pp.  137-38),  of  the  very  essence 
of  the  feudal  bond,  with  its  allegiance  ("loyalty")  of  the 
vassal,  given  in  return  for  protection  by  the  lord.  When 
the  feudal  lord  failed  to  protect,  his  raison  d'etre  was  gone. 
He  became  a  mere  oppressor,  demanding  onerous  services 
from  his  vassal  or  "tenant,"  and  rendering  nothing  in  re- 
turn. The  theory  of  the  lawyers,  that  the  tenant  owed  his 
benefice  or  estate  to  the  original  bounty  of  his  lord,  des- 
perately as  it  was  worked,  failed  to  satisfy  what  we  should 
now  call  public  opinion;  because  it  was,  as  we  have  seen, 
opposed  to  the  facts,  and  known  to  be  so  opposed. 

Of  this  failure  of  feudalism,  there  can  be  no  manner  of 
doubt.  The  revival  of  the  State  in  Western  Europe  occurred 
in  the  tenth  and  eleventh  centuries;  and  it  was  unquestion- 
ably due  to  a  danger  which  at  first  seemed  destined  to  de- 
stroy it,  viz.,  the  renewed  attacks  upon  Christendom  by  the 
surrounding  "heathen" — the  Northmen,  or  Normans,  from 
the  north,  the  Huns  and  other  Tartar  tribes  from  the  east, 
and  the  Mahometan  power  of  the  south.  Before  these 
fierce  attacks,  the  feudal  Empire  of  the  successors  of  Charles 
the  Great  reeled  in  dismay;  it  seemed  as  though  the  Dark 
Ages  were  at  hand  once  more. 

The  situation  was  saved  by  a  movement  which  would,  to 
modern  minds,  seem  most  unlikely  to  command  success; 
but  which,  owing,  perhaps,  to  the  want  of  cohesion  among 
the  attacking  forces,  did,  undoubtedly,  avert  the  danger. 
The  unwieldy  feudal  Empire  of  the  Carolings  dissolved  into 
smaller  States,  in  which,  though  feudal  ideas  still  played  a 
large  part,  we  can  see  that  their  day  is  definitely  ending, 
and  that  they  will  ultimately  fall  before  the  determined 
attacks  of  a  stronger  power.  This  is  the  origin  of  the  mod- 
era  State  of  France,  of  those  little  kingdoms  (Leon,  Ara- 
gon,  Castile,  Navarre)  which,  afterwards,  once  more  coa- 
lesced into  the  monarchy  of  Spain,  and  of  the  medieval  Ger- 


152   THE   STATE   AND   THE   NATION 

man  Empire  which,  though  it  was  (naturally)  much  longer 
in  disentangling  itself  from  the  old  feudal  Empire  of 
Charles  the  Great,  became  from  this  period  a  more  or  less 
compact  State,  stretching  from  the  Alps  to  the  Baltic,  until 
it  was  once  more  dissolved  into  its  elements  by  the  Wars  of 
Religion  in  the  seventeenth  century.  That  this  is  the  or- 
igin of  the  States  of  Western  Continental  Europe — of 
France  in  the  election  of  Hugh  Capet  in  A.D.  987,  of  Ger- 
many in  that  of  Conrad  the  Franconian  (911)  and  Henry 
the  Fowler  (919),  of  the  Spanish  kingdoms  in  the  tenth  and 
early  eleventh  centuries — is  put  beyond  all  question  by  the 
chroniclers  of  the  time.  "He  was  elected  by  the  prelates  and 
magnates  of  the  whole  of  the  Gallic  Kingdom,  to  expel 
thence  the  rage  of  the  heathen  madness";  that  is  a  typical 
entry  in  the  contemporary  records.  On  the  other  hand,  we 
get,  in  this  same  period,  the  foundation  of  new  States,  on  the 
fringes  of  the  old  Carolingian  Empire,  by  the  old-fashioned 
method  of  conquest,  such  as  the  States  founded  by  the 
Normans  in  Britain,  Apulia,  and  Sicily,  and  by  the  Huns 
or  Magyars  in  what  is  now  Hungary  (p.  124) ;  while  the 
Slavonic  tribes  in  Bohemia  and  Poland,  by  a  process  of 
coalescing  of  which  we  should  like  to  know  more,  developed 
into  national  States,  accepted  Christianity,  and  were  ad- 
mitted into  the  circle  of  European  politics.  The  consolida- 
tion of  the  Scandinavian  tribes  into  the  historic  kingdoms 
of  Sweden,  Norway,  and  Denmark,  had  already  taken  place, 
in  the  ninth  century,  by  the  gradual  rise  to  power  of  mili- 
tary adventurers,  who  had,  in  the  picturesque  words  of 
the  Heimskringla  Saga,  subdued  all  rival  chiefs  "with  scatt 
(taxes),  and  duties,  and  lordships."  Thus  the  seed-bed  of 
modern  politics  was  sown  by  the  end  of  the  eleventh*  cen- 
tury after  Christ. 

Once  more,  then,  we  are  compelled  to  recognise  that,  as  on 
the  downfall  of  the  Roman  Empire  in  the  fifth  and  sixth 
centuries,  so  in  the  resettlement  of  Western  Europe  in  the 
tenth  and  eleventh,  the  military  principle  was  the  basis  of 
the  State.  We  must  not  yet  call  it  "sovereignty";  because 
that  is  a  much  more  complex  notion,  which  it  took  nearly 


EARLY   POLITICAL   INSTITUTIONS    153 

five  centuries  of  history  to  produce.  But  we  may  fairly  call 
it  "force,"  or  military  power,  with  its  essential  accompani- 
ments of  despotic  authority,  extreme  jealousy  of  interfer- 
ence from  within  or  without,  and  its  insistence  on  dealing 
directly  with  each  individual  under  its  sway,  regardless  of 
minor  authorities  or  associations.  No  fallacy  has  more 
confused  the  study  of  social  history  than  the  sentimental 
doctrine  that  the  State  is  an  "enlarged  family";  and  no 
honest  person  in  the  least  familiar  with  the  history  of  so- 
cial development  could  possibly  maintain  such  a  doctrine. 
The  State  is  the  very  antithesis  of  the  family,  and  of  all 
institutions  based  on  principles  of  kinship;  and  it  is  almost 
the  first  condition  of  an  intelligent  recognition  of  the  proper 
province  of  each  to  realise  this  fact.  Many  of  the  gravest 
mistakes  of  social  organisation  have  arisen  from  want  of 
such  realisation.  The  famous  apophthegm  of  Treitschke, 
"The  State  is  Power,"  is  absolutely  borne  out  by  the  facts 
of  history;  it  is  only  in  their  monstrous  and  illogical  de- 
duction from  this  truth  that  Treitschke  and  his  followers 
erred.  Their  doctrine,  in  brief,  was:  "The  State  is  Power; 
therefore  fall  down  and  worship  it."  The  true  doctrine  is: 
"The  State  is  Power;  therefore,  while  recognising  its  value, 
beware  how  you  allow  it  to  master  you."  And  if  the  fol- 
lowers of  Treitschke  demand  scornfully:  "How  do  you 
propose  to  do  that?"  the  answer  is  simple:  "By  the  exer- 
cise of  intelligence."  The  use  of  intelligence  to  circumvent 
or  utilise  physical  force  is  the  key  of  civilisation. 

But,  if  we  look  a  little  more  closely  at  the  new  States 
which  emerged  from  the  break-up  of  the  feeble  Frank  Em- 
pire* in  the  tenth  and  eleventh  centuries,  we  shall  observe 
that  another  powerful  element  was  at  work  in  the  policy 
of  their  rulers.  These  were,  in  almost  all  cases,  great  feu- 
dal magnates,  who  had  been  elected  by  their  fellow-mag- 
nates as  military  chiefs.  In  the  former  quality  we  see,  as 
has  been  said,  the  original  State  idea,  now  shorn  of  much 
of  its  old  barbarism  by  being  employed  for  purposes  of 
defence,  rather  than  of  conquest;  and  there  is,  doubtless, 
a  certain  humour  in  the  situation  which  compelled  the 


154  THE    STATE   AND    THE   NATION 

descendants  of  the  plunderers  of  the  fifth  and  sixth  centuries 
to  organise  for  the  defence  of  those  possessions  which  their 
ancestors  had  wrested  from  the  provincials  of  the  Roman 
Empire.  But  the  feudal  magnate,  besides  being  the  ruler, 
or  "lord,"  of  a  vast  district,  was  himself  a  proprietor  of 
great  "domains,"  which  he  administered  as  an  owner,  rather 
than  a  ruler.  This  fact  is  cardinal  in  the  States  of  the 
Western  Continent;  and  it  had  distinct  consequences.  If 
the  Capetian  Counts  of  Paris  had  not  had  vast  and  fertile 
estates  in  the  valley  of  the  Seine  and  the  Orleanais,  they 
could  never  have  ruled,  however  lightly,  the  turbulent  no- 
bles of  central  and  southern  France,  after  the  terrors  of 
the  Hun  and  the  Saracen  had  once  passed  away.  If  Henry 
the  Fowler  had  not  been  Duke  of  Saxony,  he  could  never 
have  held  together  the  great  German  fiefs  of  the  Empire, 
after  he  had  established  the  eastern  marches  against  the 
invaders.  Hugh  Capet  and  Henry  the  Fowler  were,  in 
fact,  elected  rulers  for  much  the  same  reasons  as  those  which 
often  induce  a  Town  Council  to  elect  a  wealthy  mayor — 
because  he  can  "do  the  thing  well." 

But,  as  we  have  said,  distinct  and  important  consequences 
followed  from  this  fact.  Two  of  them  may  be  mentioned. 

The  first  is,  that  the  newly  formed  States  rapidly  became 
HEREDITARY.  In  spite  of  the  clearest  evidence  that  the 
founders  of  the  new  royal  lines,  like  the  earliest  war-chiefs, 
were  elected — in  spite  of  the  formal,  and,  in  some  cases, 
very  elaborate  show  of  electoral  rights — it  is,  in  fact,  very 
well  known,  that  the  descendants  of  Capet  in  France, 
Stephen  in  Hungary,  Rudolf  of  Habsburg  in  Austria,  and 
Henry  of  Luxemburg  in  Bohemia,  even  of  Henry  the  Fowler 
and  of  Conrad  of  Franconia  in  Germany,  continued  for 
many  generations  to  rule  their  respective  States.  It  is  as 
difficult  to  doubt  the  cause  of  this  departure  from  the  primi- 
tive military  tradition,  as  it  is  to  doubt  its  permanent  im- 
portance. We  have  seen  (p.  143)  how  the  offices  of  the 
Carolingian  Empire  (not  merely  what  might  be  called  the 
territorial  offices,  like  the  countships,  but  even  the  Court 
offices,  framed  on  the  model  of  the  Eastern  Empire,  such 


EARLY   POLITICAL   INSTITUTIONS     155 

as  those  of  the  Chamberlain  and  the  Marshal)  became 
hereditary.  It  is  unlikely  that  the  positions  of  the  newly 
created  rulers  would  escape  the  same  tendency;  especially 
when  the  influence  was  strengthened  by  the  inheritance 
of  great  domains,  which  had  long  been  recognised  as 
hereditary.  This  tendency  had  much  influence,  as  we  shall 
hereafter  see  (p.  226),  on  the  development  of  PROPERTY 
IN  LAND;  but  here  we  notice  especially  its  influence  on  the 
nature  of  the  State.  And  it  can  hardly  have  failed  to 
broaden  the  outlook  of  the  new  rulers  towards  their  sub- 
jects; even  if,  on  the  other  hand,  it  encouraged  them  to 
look  upon  these  subjects  as  their  own  property.  For  the 
prosperity  of  his  domains  is  the  natural  object  of  a  great 
proprietor;  and  thus  the  new  rulers  would  claim  and  ex- 
ercise, at  any  rate  in  their  own  domains,  that  watchful  care, 
and  that  constant  and  detailed  management,  or  adminis- 
tration, which  are  the  natural  features  of  prudent  owner- 
ship. 

At  first,  no  doubt,  these  administrative  powers  were 
strictly  confined  to  the  demesnes  of  the  new  rulers,  as  dis- 
tinct from  their  territories;  and  nothing  is  more  remarkable, 
in  the  history  of,  for  example,  France,  than  the  rigid  line 
so  long  drawn  between  the  royal  domains  and  the  districts 
of  the  feudal  vassals,  in  legislation,  administration  of  jus- 
tice, and  finance.  But  the  big  royal  domain  soon  began  to 
grow  at  the  expense  of  the  rival  feudatories.  By  a  skilful 
use  of  the  claim  to  forfeitures  and  escheats,1  by  diplomatic 
inter-marriages  between  scions  of  the  royal  houses  and  the 
heirs  and  heiresses  of  the  great  fiefs,  by  the  encouragement 
of  complaints  from  the  inhabitants  of  the  feudal  terri- 
tories, the  extent  and  influence  of  the  royal  domains  con- 
tinued to  increase,  and  the  administrative  claims  of  the 
rulers  of  the  State  to  have  a  wider  and  wider  scope.  Thus 
the  union  of  the  ruler  with  his  subjects  became  more  and 
more  intimate.  He  ceased  to  be  a  mere  military  leader, 

1  An  escheat  is  an  estate  which,  on  the  death  of  its  owner 
without  heirs,  goes  back  to  the  "lord,"  who,  or  whose  ancestor, 
is  supposed  to  have  granted  it. 


156  THE   STATE   AND    THE   NATION 

having  awkward  claims  upon  his  followers  for  military  serv- 
ice; he  became  a  ruler  concerned  with  the  general  welfare 
of  his  subjects. 

A  second  well-marked  consequence  of  the  fact  that  the 
founders  of  the  modern  States  of  Western  Europe  were 
great  landowning  magnates,  was  the  curious  attitude  of 
their  subjects  expressed  in  the  maxim  that:  "The  King 
must  live  of  his  own."  The  persistence  with  which,  in  this 
country  at  least  (and,  probably,  in  all  countries  retain- 
ing monarchical  forms),  the  official  documents  continue  to 
speak  of  the  national  revenue  and  expenditure  as  the 
"King's  revenue"  and  the  "royal  expenditure,"  is  not  a 
mere  courtly  politeness,  but  the  survival  of  a  deep-seated 
historical  tradition.  For,  though  the  new  rulers  did,  ap- 
parently, succeed  in  taking  over  the  customary  tribute 
rendered  to  the  old  tribal  chiefs  (known  in  England  as  the 
"ferm  of  the  shire"),  and  their  prerogative  claims  to  such 
"casualties"  as  wreck,  treasure-trove,  valuable  metals,  rare 
fish,  and  the  like,  yet  for  many  years  their  chief  source 
of  income  was  their  own  domains,  which,  as  we  have  seen, 
the  survival  of  feudal  principles  enabled  them  to  augment 
at  the  expense  of  their  feudatories.  And  it  was  not  long 
before  a  skilful  revival  of  the  ancient  claims  to  universal 
military  service  (pp.  127-28),  and  an  acceptance  of  money- 
payments  in  lieu  of  personal  render  both  of  militia  and 
feudal  duties,  introduced  the  system  of  TAXATION,  without 
which  no  modern  State  could  exist.  But  the  difficulties  at- 
tendant upon  the  introduction  of  this  system  were  not 
merely  the  natural  result  of  unwillingness  to  "pay  up"; 
they  were  also  inspired  by  the  widespread  feeling,  that  an 
unconscious  bargain  had  been  made  with  the  founders  of 
the  States  to  "defray  their  own  charges."  And  it  was  not 
until  the  powerful  aid  of  the  Church  had  been  invoked  to 
support  the  aide  pour  le  cas  de  croisade,  or,  as  it  was  called 
in  England,  the  "Saladin  Tithe,"  in  the  twelfth  century, 
that  the  unpopular  institution  of  general  taxation  became 
familiar;  and,  even  then,  in  constitutionally  governed  coun- 
tries like  England,  the  ancient  feeling  revealed  itself  for 


EARLY   POLITICAL   INSTITUTIONS     157 

centuries  in  the  distinction  between  the  "ordinary"  and  the 
"extraordinary"  revenue  of  the  Crown.1  But  in  England 
the  same  feeling  also  had  other  and  more  momentous  re- 
sults, which  must  be  dealt  with  when  we  come  to  speak  of 
that  vital  element  in  modem  political  institutions  known 
as  "representation." 

These  were  the  two  great  direct  consequences  of  the 
position  of  the  early  rulers  of  modern  European  States  as 
the  lords  of  great  feudal  domains.  But  the  influence  of  the 
same  fact  is  clearly  manifest  when  we  come  to  consider  the 
instruments  by  which  these  rulers  governed  their  subjects. 
Once  more,  be  it  remembered,  their  primary  functions  were 
military.  It  would,  therefore,  be  natural  to  assume  that, 
beyond  a  limited  circle  of  household  officials — Chamber- 
lains, Stewards,  Chancellors,  Treasurers,  and  the  like — 
they  would  have  little  need  for  what,  in  modern  days,  is 
known  as  a  "Civil  Service."  Moreover,  in  countries  like 
France  and  Germany,  where  feudalism  long  remained  as  a 
strong  tradition,  even  the  military  duties  of  the  ruler  were, 
as  we  have  seen  (p.  140),  performed  through  the  agency 
of  his  military  vassals,  who,  in  their  turn,  delegated  much 
of  their  power  to  their  under-vassals,  and  so  on.  To  su- 
pervise the  calling  out  and  manoeuvring  of  the  feudal  ar- 
ray, they  required,  doubtless,  a  few  superior  officials,  such 
as  a  Constable  and  a  Marshal,  whose  offices,  however, 
splendid  as  they  were  in  appearance,  were,  owing  to  the 
mass  of  privilege  and  etiquette  which  hampered  the  pro- 
ceedings of  the  feudal  army,  often  little  more  than  sine- 
cures, and  became,  in  fact,  hereditary  dignities,  rather 
than  working  offices.  Moreover,  the  failure  of  these  rul- 
ers to  keep  alive  the  ancient  militia  or  Landwehr  system 
of  Charles  the  Great,  rendered  their  States,  despite  the 
splendid  appearance  of  their  armies,  essentially  weak  in 

*The  distinction  was  still  emphasised  by  Blackstone  in  the 
eighteenth  century;  and  it  even  appears  in  some  modern  text- 
books. But  it  ceased  to  have  any  real  meaning  after  the  mis- 
cellaneous "ordinary  revenue"  of  the  Crown  had  been  com- 
muted for  a  "Civil  List." 


158  THE   STATE   AND    THE   NATION 

defence,  as  well  as  wanting  in  that  direct  contact  between 
the  supreme  government  and  the  mass  of  its  subjects  which 
is  essential  to  sound  political  development.  And  when, 
owing  to  the  failure  of  the  feudal  levies,  a  professional 
standing  army,  known  as  the  "companies  of  ordonnance," 
was  introduced  into  France  in  the  fifteenth  century,  it  was 
accompanied  by  the  institution  of  the  faille,  or  arbitrary 
tax,  which,  by  its  unfair  exemptions  and  excessive  severity, 
did  almost  as  much  as  the  corvee,  or  forced  levy  of  labour, 
to  alienate  the  mass  of  the  people  from  the  Crown,  and  to 
pave  the  way  for  the  Great  Revolution.  In  Germany,  even 
this  doubtful  attempt  at  consolidation  was  not  made;  and, 
consequently,  the  nominal  Emperor  had  no  strong  force  at 
his  disposal  wherewith  to  enter  upon  that  struggle  with  the 
feudal  magnates  which  enabled  Louis  XI.  in  France  at 
last  to  make  of  his  kingdom  a  national  State. 

In  fact,  in  the  still  feudalised  countries  of  Western  Eu- 
rope, the  one  chance  for  a  ruler  to  develop  political  in- 
stitutions lay  in  his  own  domains.  Here  he  was  really 
a  master,  not  a  mere  overlord.  And  it  was  here  that,  by 
a  searching  system  of  police  and  administration,  by  the 
appointment  of  bailiffs  or  seneschals,  provosts,  and  mayors, 
as  in  France,  of  Landgraves  and  Burggraves,  as  in  Ger- 
many, he  could  effectively  direct,  and,  it  is  to  be  feared,  also 
tax,  the  energies  of  his  subjects.  But  even  this  system  had 
its  dangers.  Where,  as  in  France  after  the  Hundred  Years' 
War,  the  vigorous  policy  of  Louis  XL  and  his  successors 
led  to  the  absorption  of  the  great  fiefs  into  the  royal  do- 
mains, it  gradually  spread  throughout  the  country  an  ar- 
bitrary system  of  government  which  led  directly  to  the  ab- 
solutism of  Louis  XIV.,  and,  indirectly,  to  the  downfall  of 
the  monarchy  in  the  French  Revolution.  Where,  as  in 
Germany,  the  feudal  vassals  proved  in  the  end  too  strong 
for  the  Emperor,  and  broke  up  the  Empire  into  the  mod- 
ern independent  States,  even  the  Imperial  officials  became 
feudal  potentates,  and  repeated,  on  a  smaller  scale,  the  proc- 
ess which  had  broken  up  the  earlier  and  more  ambitious 
Empire  of  Charles  the  Great. 


EARLY    POLITICAL   INSTITUTIONS     159 

It  was  this  tragedy  of  Continental  politics  in  the  later 
Middle  Ages  which  gave  the  little  States  of  Western  Eu- 
rope— England,  the  Dutch  Netherlands,  and  the  Swiss  Re- 
public— their  proud  position  as  leaders  of  political  thought 
and  sound  experimenters  in  political  progress.  The  com- 
pleteness of  the  military  conquest  of  England  by  Nor- 
man William  enabled  him,  not  merely,  as  we  have  seen, 
to  crush  at  the  outset  the  dangerous  pretensions  of  his 
feudal  followers,  but  to  treat  England,  a  small  and  easily 
traversable  country,  as  a  single  royal  domain.  No  sooner 
was  the  Conqueror  firmly  seated  on  the  throne,  than  he 
began  that  systematic  survey  of  his  new  possession  which 
culminated  in  the  priceless  record  of  Domesday  Book. 
The  administrative  genius  of  his  Norman  clerks,  which 
seems  to  have  been  a  blend,  acquired  during  the  century 
of  Norman  settlement  in  France,  of  the  subtlety  of  the 
Gaul  with  the  fiery  energy  of  the  Northman,  bent  itself 
eagerly  to  exploit  the  rich  material  laid  bare  by  the  Domes- 
day survey.  Already  in  the  reign  of  William's  son  Henry, 
we  find  distinct  traces  of  regular  "eyres"  or  journeys 
(itinerd)  of  the  officials  of  the  Royal  Exchequer  round 
the  counties,  enquiring  into  grievances,  ferreting  out  the 
dues  of  the  Crown,  composing  quarrels,  keeping  a  sharp 
eye  on  the  ancient  local  institutions  of  the  hundred  and 
the  township,  and  calling  them  to  account  for  the  misdeeds 
of  their  members.  Already  we  see  an  elaborate  machine, 
the  ROYAL  EXCHEQUER,  working  twice  a  year  under  the 
supervision  of  the  great  officials  of  the  Crown,  to  digest 
the  reports  of  these  itinerant  barons  and  justices,  as  well 
as  to  receive  the  accounts  of  the  royal  SHERIFFS  entrusted 
with  the  daily  watching  of  their  counties  in  the  interests 
of  the  State.  These  sheriffs,  unlike  the  comtes  and  Grafs 
of  France  and  Germany,  were  not  allowed,  in  spite  of  their 
struggles  that  way,  to  develop  into  feudal  potentates. 
Their  terms  of  office  were  short;  they  were  bound  to  ren- 
der the  strictest  accounts  of  their  doings;  when  the  great 
Henry  II.  heard  evil  reports  of  their  doings  in  his  absence, 
he  held  an  "inquest"  or  enquiry  which  made  them  shud- 


160  THE   STATE   AND    THE   NATION 

der.  Gradually  their  more  important  powers  were  taken 
away  from  them,  and  entrusted  to  persons  more  di- 
rectly dependent  upon  the  royal  favour.  In  the  twelfth 
century,  the  State  took  an  enormous  step  forward  by 
practically  concentrating  in  its  own  hands  the  ADMINIS- 
TRATION OF  JUSTICE;  but  this  is  so  important  a  step  that  it 
must  be  left  for  description  in  the  next  chapter.  The  same 
vigorous  ruler  who  brought  the  sheriffs  to  heel  and  set 
up  the  jury  system,  also  took  care  to  reorganise  the  an- 
cient MILITIA,  and  thus  to  establish  a  powerful  counter- 
poise to  the  disruptive  tendencies  of  the  feudal  array.  In 
the  thirteenth  century,  the  great  King  Edward  virtually 
cast  aside  the  feudal  army,  and,  in  his  numerous  wars, 
practically  relied  upon  the  direct  military  service  of  all 
landowners,  of  whatever  tenure.  But  the  political  prog- 
ress of  England  in  the  two  centuries  following  the  Nor- 
man Conquest  was  so  rapid,  that  it  has  outstripped  our 
account  of  the  medieval  State;  and,  before  dealing  fur- 
ther with  English  experiments,  we  must  notice  one  other 
feature  of  State  development  which  was  common  to  the 
early  monarchies  of  Western  Europe.  This  was  the 
COUNCIL  (Conseil  des  Pairs,  Cortes)  which  surrounded  the 
medieval  monarch,  and  which  was  the  fruitful  parent  of 
later  political  institutions. 

The  direct  origin  of  this  body  was  unquestionably  feu- 
dal; but  it  goes  back  to  the  comitatus  or  band  of  com- 
panions (pp.  127-28)  who  surrounded  the  war-chief,  and 
devoted  themselves  to  his  interests.  Whether,  in  the  feu- 
dal blend,  it  took  over  some  of  the  character  of  the  patri- 
archal Council  of  Elders  (the  Rachimburgi  of  the  Franks, 
or  the  Witan  of  the  English)  is  a  much  disputed  point; 
certainly  it  was  constructed  on  very  different  lines.  It 
was  based  on  the  fundamental  feudal  principle,  that  it  was 
the  duty  of  every  vassal  to  render  "suit  and  service"  to 
his  immediate  lord — service  in  the  field,  and  suit  (or  fol- 
lowing) at  his  court.  Consequently,  not  only  the  supreme 
ruler — King  or  Emperor — but  every  feudal  lord,  had  his 
council  or  court;  but,  naturally,  that  of  the  supreme  lord 


EARLY   POLITICAL   INSTITUTIONS    161 

was  by  far  the  greatest  of  all,  for  it  contained,  in  theory, 
all  the  "tenants-in-chief"  (p.  139)  of  the  Crown,  i.e.,  all 
those  who  "held"  benefices  (military  or  civil)  directly  from 
the  King  or  Emperor.  We  say  "in  theory";  because  it  is 
quite  clear  from  the  records,  that,  owing  to  the  labour  and 
cost  of  travelling,  only  the  wealthier  tenants-in-chief  in 
fact  attended  regularly  the  meetings  of  the  council,  which 
was  actually  known  in  England  as  the  Council  of  the  Mag- 
nates, or  Great  Ones.  Nevertheless,  it  was  the  unques- 
tioned right  of  the  King,  as  of  every  feudal  lord,  to  insist 
upon  the  personal  attendance  of  each  of  his  direct  vas- 
sals; and  any  refusal  to  attend  a  personal  summons  was 
a  deliberate  defiance,  or  repudiation,  of  the  feudal  lord, 
which  involved  forfeiture  of  the  benefice. 

Insensibly,  by  a  process  which  is  to  be  found  everywhere 
at  work  in  social  progress,  what  was  originally  a  DUTY 
became  gradually  a  RIGHT;  and  a  ruler  who  failed  to  con- 
sult his  council  of  vassals  when  he  contemplated  any  im- 
portant step,  would  have  found  himself  at  a  decided  dis- 
advantage. To  use  a  modern  expression,  he  would  have 
been  condemned  by  "public  opinion" — that  subtle  force 
which  marks  the  limits  even  of  legal  rights,  and  which  lies 
at  the  base  of  what  we  call  "constitutional  freedom."  The 
precise  extent  to  which  a  ruler  was  bound  to  defer  to  the 
advice  of  his  council,  when  summoned,  was  not  settled  till 
a  much  later  stage  of  political  development  than  that  we 
are  now  considering;  and  even  the  famous  (and  much  mis- 
understood) clause  of  the  Great  Charter  of  John,  which 
insists  on  the  summoning  of  a  "common  council"  whenever 
certain  business  is  toward,  is  studiously  vague  on  this 
point.  But  the  existence  of  the  Council,  and  its  growing 
power,  are  among  the  most  important  features  of  the  early 
history  of  the  State. 

It  would,  however,  be  misleading  to  leave  this  subject 
without  pointing  out  that,  in  the  progressive  States  of 
Western  Europe,  we  can  trace  the  early  appearance  of  a 
double  aspect  of  this  important  body.  For,  in  addition  to 
the  Great  Council,  which  nominally  comprised  all  the  ten- 


162   THE   STATE   AND    THE   NATION 

ants-in-chief,  though,  probably,  as  we  have  said  (p.  161), 
only  the  "major  barons"  usually  attended,  there  grew  up, 
inside  it,  a  smaller  body,  known  in  England  originally  as 
the  Curia  Regis,  afterwards  as  the  "Privy  Council,"  in 
France  as  the  Cour  de  Palais,  in  Germany  as  the  Hof- 
gericht,  or  Palace  Court.  This  smaller  body  was,  appar- 
ently, composed  of  the  personal  attendants  of  the  King  or 
Emperor,  the  Court  officials  whom  he  consulted  in  the 
daily  business  of  affairs,  and  on  matters  in  respect  of 
which  it  was  deemed  unnecessary  to  summon  the  Great 
Council.  In  theory  it  was,  like  the  latter,  a  strictly  feudal 
body  of  tenants-in-chief,  who  held  their  offices  directly 
from  the  King  or  Emperor,  and  whose  offices  were,  like 
those  of  the  provincial  magnates,  in  practice  hereditary. 
But,  in  England  at  least,  as  the  business  of  State  grew,  it 
was  found  necessary  by  the  Kings  to  add  to  these  heredi- 
tary councillors  a  number  of  humbler  persons,  known  as 
King's  ministers  (ministri  regis),  who,  largely  because  most 
of  them  'were  celibate  clerics,  could  not  well  make  their 
offices  hereditary,  and  who  could,  therefore,  actually  be 
appointed  and  dismissed  by  the  King  at  his  pleasure. 
Therefore,  though  this  smaller  council  rapidly  became,  ow- 
ing to  its  intimate  knowledge  of  the  royal  affairs,  a  body 
of  great  importance,  yet  its  independence  was  a  good  deal 
less  than  that  of  the  Great  Council,  whose  members,  so 
long  as  they  rendered  their  due  services,  could  not  be  dis- 
missed by  the  King.  In  consequence,  the  future  of  the 
royal  PREROGATIVE,  or  personal  authority  of  the  wearer  of 
the  crown,  lay  with  the  smaller  council;  while  the  larger 
body  formed  the  nucleus  round  which  the  restraining  in- 
fluences of  popular,  or  CONSTITUTIONAL,  aspirations  were 
to  gather.  But  we  must  be  careful  to  remember,  that 
neither  the  Great  nor  the  Privy  Councils  of  the  eleventh 
and  twelfth  centuries  had  any  really  POPULAR  element 
about  them.  They  were  not,  in  any  strict  sense  of  the 
word,  REPRESENTATIVE.  They  stood,  no  doubt,  at  least 
the  Great  Council  did,  for  self-government,  in  the  limited 
sense  in  which  the  feudal  magnates  understood  it;  but,  in 


EARLY   POLITICAL   INSTITUTIONS     163 

their  eyes,  none  but  the  direct  vassals  of  the  Crown  had 
any  right  to  a  voice  in  national  affairs.  Even  the  famous 
clause  of  the  Great  Charter  of  John,  which  marks  the 
highest  point  of  feudal  aspirations  in  this  direction,  pro- 
vides only  for  a  Common  Council  which  shall  comprise 
the  archbishops,  bishops,  abbots,  earls,  and  "greater  bar- 
ons," who  are  each  to  receive  a  personal  summons  from 
the  King,  and  "all  those  (others)  who  hold  of  us  in  chief," 
who  are  to  be  summoned  through  the  King's  sheriffs  and 
bailiffs.  The  real  novelty  of  the  clause  lies  in  the  dis- 
tinction between  the  two  kinds  of  summons,  which  not  only 
recognised  existing  practice,  but  provided  a  machinery  for 
extending  it  on  certain  specified  occasions,  and  thus  seems 
to  have  acted  as  a  useful  hint  for  subsequent  develop- 
ments. But  the  Charter  of  1215  was  obviously  the  work 
of  a  group  of  persons  whose  ideas  were  still  bounded  by 
the  feudal  horizon. 

With  this  simple  machinery  of  King  or  Kaiser,  assisted 
by  a  Court  or  daily  council  of  household  officials,  who 
managed  the  affairs  of  the  kingdom  much  as  those  of  a 
great  domestic  establishment,  and  with  the  advice  on 
greater  matters  of  a  Great  Council  of  tenants-in-chief,  the 
infant  State  in  Western  Europe  carried  out,  very  imper- 
fectly, its  work,  until  the  close  of  what  we  call  the  "Mid- 
dle Ages."  But  again  it  is  necessary  to  insist  that,  in  trac- 
ing the  process  of  evolution,  time  is  not  absolute,  but  rela- 
tive. That  is  to  say,  one  community  may  have  reached  a 
certain  stage  at  a  given  calendar  date,  while  another,  per- 
haps closely  allied  to  it  in  blood,  may  not  reach  that  stage 
for  a  century  or  more  afterwards.  This  is  so,  even  where, 
as  in  the  States  of  Western  Europe,  there  has  always  been 
a  frequent  intercourse,  which  has  produced  a  community 
of  development;  much  more  so,  in  the  case  of  more  dis- 
tant countries. 

Thus  the  "Middle  Ages"  are  rather  a  condition  than  a 
period.  Their  close  is  marked  by  the  fact,  that  the  State 
has  definitely  established  itself  as  an  INSTITUTION — i.e.,  as 
a  permanent  piece  of  social  machinery  which  goes  on  work- 


164  THE   STATE   AND   THE   NATION 

ing,  despite  the  deaths  of  those  who  work  it.  In  England, 
this  stage  was  reached  far  earlier  than  in  any  other  country 
of  Western  Europe;  and,  for  the  sake  of  those  who  seek  for 
definite  dates,  in  the  year  1272,  when,  on  the  death  of 
Henry  III.,  his  son  Edward  was  proclaimed  King  in  his 
absence,  and  the  "King's  Peace"  continued  to  run  without 
break.  It  was  long  before  a  similar  recognition  of  the  per- 
manence of  the  State  took  place  in  France — perhaps  not 
until  the  reign  of  Louis  XI.  In  Germany,  the  Kaisership 
remained  an  uncertain  and  casual  accident,  until  the  Golden 
Bull  of  Charles  IV.  (1355)  fixed  the  electoral  college  which 
chose  the  Kaiser,  and  defined  its  powers;  and  even  that 
was  insufficient  to  prevent  that  disruption  of  the  Empire 
which  had  commenced  already  under  Frederick  II.,  and 
which  culminated  in  the  Wars  of  Religion.  Meanwhile,  out- 
side the  sphere  of  the  infant  State,  social  life  was  still  largely 
governed  by  the  surviving  institutions  of  an  older  system, 
and  by  the  still  strong  influence  of  feudal  principles.  Our 
task  is,  now,  to  see  how  the  State  extended  its  sphere,  until 
it  had  crushed  these  rivals  for  supremacy. 


CHAPTER  XII 

THE   STATE   AND  PUBLIC   ORDER 

IT  is  hardly  necessary  to  explain  why  the  State  should,  at 
a  comparatively  early  stage  of  its  career,  have  come  to  re- 
gard the  maintenance  of  public  order  as  one  of  its  primary 
duties.  In  the  first  place,  the  suppression  of  private  vio- 
lence closely  resembled  the  original  task  of  the  State,  as  an 
institution  for  carrying  on  war  against  alien  communities. 
In  the  second,  the  State,  as  the  controller  of  military  force, 
was  incomparably  the  most  efficient  agent  for  the  suppres- 
sion of  private  violence,  which,  as  we  have  seen  (p.  83), 
patriarchal  society  found  it  very  hard  to  control.  In  the 
third,  it  must  soon  have  become  obvious,  that  a  com- 
munity which  is  torn  by  internal  feuds  is  bound  to  be  weak 
as  a  military  unit;  thus  the  State  had  a  direct  in- 
terest in  maintaining  internal  order.  But,  if  the  task  was 
clearly  set  before  it  in  all  countries,  the  different  ways  in 
which  the  State  attempted  to  perform  it  in  different  coun- 
tries are  an  interesting  study;  for  they  did  much  to  mark 
the  different  lines  of  political  development  in  those  coun- 
tries. 

Broadly  speaking,  the  maintenance  of  public  order  is 
effected  by  two  kinds  of  agencies,  those  known  as  POLICE 
and  JUSTICE,  or  judicial  proceedings.  These  names,  whTch 
are  common  to  almost  all  the  languages  of  Western  Europe, 
are  suggestive.  The  former  is,  obviously,  the  same  word 
as  POLITICS,  and  implies  a  close  and  essential  connection 
with  the  work  of  the  State  (TO\IS).  It  is  concerned  rather 
with  the  prevention  of  violence,  than  with  the  causes  which 
lead  to  violence.  The  latter,  as  its  name  implies,  is  con- 
cerned with  "right"  or  "law"  (jus),  that  is,  with  the  ad- 
justment of  disputes  arising  out  of  alleged  breaches  of  rules 

165 


166   THE   STATE   AND   THE   NATION 

of  conduct.  The  former  is,  obviously,  much  more  closely 
related  than  the  latter  to  the  primary  functions  of  the 
State  as  a  military  power;  and  we  find,  accordingly,  that 
it  is  in  the  direction  of  police,  rather  than  justice,  that  the 
earliest  efforts  of  the  State  to  maintain  public  order  are 
made. 

Even  before  the  break-up  of  the  Empire  of  Charles  the 
Great,  and  the  definite  establishment  of  the  State  as  an 
institution  (Ch.  XI.),  the  notion  of  the  "King's  Peace" 
had  clearly  made  its  appearance.  We  find,  for  example, 
innumerable  references  to  it  in  the  Barbarian  Codes,  both 
of  the  Continent  and  of  England.  The  various  solemnly 
proclaimed  "Peaces"  of  Charles  and  his  successors,  the 
"King's  Peace"  (cyninges- frith)  of  the  Anglo-Saxon  Laws, 
appear,  side  by  side,  with  the  Church's  peace  or  right  of 
asylum  (solemnly  adopted  as  part  of  the  policy  of  the 
Church  by  the  Council  of  Orleans  in  511),  and  the  house- 
hold peace,  or  mund,  of  the  patriarchal  age.  After  the 
foundation  of  the  modern  States,  this  idea  once  more  be- 
came prominent  in  the  "Peaces"  of  the  French  Kings 
and  German  Kaisers,  the  "Peace  of  our  sovereign  Lord 
the  King"  in  England,  the  ethsore  of  the  Swedish  (West 
Gothic)  Code. 

The  definite  line  upon  which  the  new  institution  of  the 
"King's  Peace"  proceeded  was  the  suppression  of  that 
BLOOD-FEUD  system  which,  itself,  as  we  have  suggested 
(p.  83),  a  mitigation  of  the  older  practice  of  indiscrimi- 
nate revenge,  was  yet  fatal  to  the  existence  of  orderly  soci- 
ety. We  have  seen  (p.  81),  that  the  limit  reached  by  patri- 
archal society  in  this  direction  was  the  establishment  of  the 
custom  of  accepting  voluntary  compositions,  or  blood-fines 
(wer gilds),  in  lieu  of  organised  revenge.  The  State  set  it- 
self to  make  the  acceptance  of  these  compositions  COMPUL- 
SORY; and,  as  the  most  effective  means  of  doing  so,  to  exact, 
in  addition  to  the  faidus  (fehde) — the  payment  due  to  the 
injured  party  or  his  kindred — the  jretus,  or  fine  for  breach 
of  the  peace,  due  to  itself.  It  is,  probably,  also  to  this  move- 
ment that  we  must  attribute  the  reduction  of  the  older  form 


THE   STATE   AND    PUBLIC   ORDER     167 

of  the  blood  feud,  which  took  the  form  of  a  battle  on  a  small 
scale  between  two  groups  of  kindred,  to  the  "trial  by  battle" 
between  two  individuals  (the  parties  or  their  champions), 
under  the  presidency  of  a  royal  judge,  which  was  so  con- 
spicuous a  feature  of  the  later  Middle  Ages.  In  this  respect, 
feudal  principles,  though  they  may  originally  have  aggra- 
vated the  blood-feud  system  by  their  claim  to  the  right  of 
private  war  (pp.  140-41),  probably,  as  time  went  on,  by 
their  love  of  ceremonial  combat,  helped  to  popularise  the 
milder  methods  of  judicial  "trial  by  battle."  But  the  State, 
not  content  with  a  general  policy  of  suppressing  the  feud, 
also  established  special  cases  of  peace,  in  which  any  use  of 
violence  was  treated  as  a  direct  insult  to  itself,  and  punished 
without  remorse.  The  natural  commencement  of  such  a 
policy  was  in  the  King's  Palace;  and,  to  the  present  day, 
many  systems  of  law  retain  survivals  of  this  idea,  in  the  sum- 
mary methods  available  for  punishment  of  "contempt  of 
court,"  or,  as  the  technical  English  phrase  put  it,  "trespass 
within  the  verge."  Other  examples  of  these  special  "peaces" 
were  the  sanctity  of  the  "King's  highway,"  and  the  "mar- 
ket peace"  symbolised  by  the  Kaiser-bttder  (p.  114). 

Here,  unfortunately,  the  efforts  of  the  Continental  mon- 
archs  for  the  most  part  ceased  for  a  long  while.  In  Ger- 
many, the  highest  results  in  this  direction  were  the  Land- 
friedensbezirke  (Peace  Districts),  and  the  "eight  ban  cases" 
or  crimes  of  violence,  in  which  the  State  claimed  its  for- 
feiture; whilst  in  France,  the  efforts  to  maintain  the  King's 
Peace  were  practically  confined  to  the  royal  domains  (pp. 
155-56),  where  a  strong  and  oppressive  police  jurisdiction 
was  established,  which,  as  the  royal  domain  increased  by  the 
centralising  policy,  before  described,  of  the  later  monarchy, 
gradually  extended  to  the  whole  of  the  country.  In  Eng- 
land, however,  a  far  more  thorough  and  satisfactory  policy 
was  adopted  by  the  Anglo-Norman  State,  which  did  much 
to  introduce  that  "Rule  of  Law,"  which,  as  a  distinguished 
writer  has  pointed  out,1  is  one  of  the  most  characteristic 

1  Dicey,  Introduction  to  the  Study  of  the  Constitution  (Mac- 
tnillan),  ch.  iv. 


168  THE   STATE   AND   THE   NATION 

features  of  the  British  Empire.  Briefly  put,  this  policy 
consisted  in  linking  up  the  King's  Peace  with  the  older, 
local  units  of  government. 

One  of  the  earliest  and  most  striking  examples  of  this 
policy  shows,  indeed,  that  the  Anglo-Norman  Kings  only 
continued  and  developed  an  idea  initiated  by  their  prede- 
cessors. The  famous  "Ordinance  of  the  Hundred,"  at- 
tributed to  the  reign  of  Edgar  (tenth  century),  requires 
that  the  inhabitants  of  the  hundred  shall  be  grouped  in 
TITHINGS  or  bodies  of  ten,  each  under  a  "tithing-man," 
through  whom  the  collective  responsibility  of  the  group  for 
the  misdeeds  of  its  members  shall  be  enforced;  and  the 
good  laws  of  Knut,  a  century  later,  repeat  this  injunction, 
saying:  "We  will  that  every  man  be  brought  into  a  hun- 
dred and  into  a  tithing  .  .  .  and  that  every  one  be 
brought  into  a  hundred  and  a  borh"  (pledge).  This 
scheme  the  Norman  monarchs  very  wisely  preserved  as  a 
counterpoise  to  the  feudal  principle,  which  held  the  lord 
responsible  for  the  behaviour  of  his  vassals;  and  the  "view 
of  frank-pledge,"  or  calling  of  the  tithing  rolls,  was  one  of 
the  most  important  duties  of  their  sheriffs  (pp.  159-60) 
during  the  twelfth  and  thirteenth  centuries.  It  is  worth 
while  dwelling  a  little  upon  this  enlightened  policy,  which, 
according  to  the  most  eminent  of  Continental  historians 
of  the  Middle  Ages,  had  no  counterpart  in  the  institutions 
of  the  Frank  Empire. 

Now  it  is  well  known  that  the  origin  of  the  HUNDRED, 
an  institution  found,  under  various  names,1  all  over  West- 
ern Europe,  as  the  local  unit  next  above  the  village,  has 
been  the  subject  of  much  difference  of  opinion.  The 
popular  view  connects  it  with  the  settlement  of  a  hun- 
dred warriors;  but  there  is  no  evidence  in  support  of  this 
view,  though  there  is  good  reason  to  believe  that,  in  their 
revival  of  the  ancient  fyrd,  or  militia  system  (p.  141),  in 
England,  the  Anglo-Norman  Kings  made  a  good  deal  of 

1  It  is  the  French  centaine,  the  German  Hundertschaft,  the 
Swiss  canton,  the  Swedish  harath,  the  Irish  bally,  and  the  Welsh 
cantrev. 


THE   STATE   AND   PUBLIC   ORDER     169 

use  of  it,  as  they  did  also  in  the  development  of  their  ju- 
dicial system  (p.  178).  For  reasons  hinted  at  in  an  ear- 
lier chapter,  the  writer  believes  that  the  hundred  repre- 
sents the  ancient  "run"  of  a  pastoral  group,  or  clan,  out 
of  which,  as  agriculture  developed,  sub-settlements  of  agri- 
cultural villages,  or  townships,  were  created.  The  strong- 
est evidence  for  this  view,  at  any  rate  in  England,  is  the 
fact  that,  at  the  very  dawn  of  English  history,  we  find  the 
attendance,  at  the  hundred  moot,  of  village  representatives 
("reeve,  priest,  and  four  men")  as  a  well-established  insti- 
tution. These  periodical  reappearances,  which  are  often 
spoken  of  as  the  first  examples  of  POLITICAL  REPRESENTA- 
TION in  England,  can  hardly,  in  origin,  have  been  due  to 
anything  but  an  acknowledgment  of  the  authority  of  an 
older  institution  from  which  the  village  or  township  was 
derived.  Whether  or  not  this  view  is  correct,  it  is  quite 
clear,  that  the  English  and  Anglo-Norman  Kings,  in  basing 
their  police  systems  on  ancient  popular  units,  were  dis- 
playing a  political  wisdom  which  was  destined  to  have  most 
important  results. 

One  other  remark  on  the  policy  of  Edgar  and  Knut  may 
be  permitted.  The  reader  who  remembers  the  FRITH  GILD 
(p.  Ill)  will  be  struck  by  its  close  analogy  with  the  TITH- 
ING, just  described.  Each  is,  primarily,  an  association  of 
neighbours  for  mutual  responsibility.  It  would  be  deeply 
interesting  to  know  which  is  the  older;  but,  in  the  present 
state  of  the  evidence,  this  seems  to  be  an  insoluble  ques- 
tion. Only  it  is  clear,  that  each  was  a  tentative  step  to  re- 
place the  older  bond  of  kinship  by  some  other  principle  of 
security  and  mutual  responsibility. 

A  similarly  far-sighted  policy  was  that  adopted  by  the 
English  State  in  the  thirteenth  century  with  regard  to  the 
village  and  the  burghal  WATCH.  This  institution  was, 
probably,  an  ancient  and  spontaneous  growth  of  the  vil- 
lage and  gild  system,  which  had  fallen  into  decay.  So, 
first  in  their  writs  of  Watch  and  Ward,  addressed  to  their 
sheriffs,  afterwards  in  the  great  Statute  of  Winchester  in 
1285,  the  English  Kings  reorganised  it  and  made  it  com- 


170  THE    STATE   AND   THE   NATION 

pulsory;  finally  placing  it  under  the  control  of  a  chief  or 
"high"  constable  in  each  hundred,  whose  primary  duties 
were  to  arrest  malefactors  and  strangers,  raise  the  "hue 
and  cry,"  stop  brawling,  prevent  the  carrying  of  unau- 
thorised arms,  and,  in  short,  preserve  the  peace  of  their 
districts.  By  such  measures  as  these,  while  the  Continen- 
tal police  systems  remained  in  the  hands  of  the  military 
authorities,  or  were  an  expression  of  the  centralised  au- 
thority of  the  King's  Ministers,  in  England  the  police  re- 
mained, though  under  royal  supervision,  a  strictly  local 
force.  The  result  has  been,  though  not,  perhaps,  without 
some  slight  loss  of  efficiency,  that  the  police  forces  in  Eng- 
land have  never  been  regarded  with  that  suspicion  and 
hostility  which  were  so  long  manifested  towards  the  more 
centralised  police  systems  of  the  Continent. 

Equally  striking  was  the  vigorous  development  of  the 
State  in  England  in  the  ADMINISTRATION  or  JUSTICE. 
Upon  its  resurrection  after  the  break-up  of  the  feudal 
Empire  of  Charles  the  Great,  the  State  found  itself  face  to 
face  with  numerous  rivals  in  this  field.  The  control  main- 
tained by  the  feudal  seigneur  over  his  vassals,  was  in  no 
respect  more  strongly  shown  than  in  his  claim  to  judge 
their  quarrels.  According  to  the  strict  principles  of  feudal- 
ism, this  claim  only  extended  to  disputes  concerning  the 
tenure  of  their  fiefs,  or  holdings.  But  when  the  vassals 
owing  "suit"  to  their  lord  assembled  in  his  court  (p.  160), 
it  was  natural  that  he  should  fail  to  draw  the  line  very 
sharply  between  feudal  and  other  disputes.  His  vassals 
were  his  "justiciables";  and  he  strongly  resented  the  in- 
terference of  any  outside  authority  in  their  affairs.  The 
claim  of  the  feudal  lords  to  exclusive  jurisdiction  in  their 
fiefs  was  virtually  acknowledged  in  France  so  late  as  the 
thirteenth  century,  by  Louis  IX.,  and  it  was  only  by  com- 
pelling their  subjects  to  "resort"  to  the  neighbouring  courts 
of  the  royal  domains  (p.  155),  that  the  later  French  Kings 
succeeded,  with  the  aid  of  their  "legists,"  in  extending 
their  jurisdiction  over  their  under-vassals.  In  Germany, 
the  permanent  grants  of  "immunities,"  or  exemptions  from 


THE   STATE   AND   PUBLIC   ORDER     171 

State  control,  in  favour  especially  of  monastery  lands, 
but  also  of  the  great  lay  feudatories,  left  the  feudal  courts 
in  substantial  control  of  the  administration  of  justice  in 
ordinary  affairs,  until  the  definite  claims  of  the  former 
feudatories  to  territorial  independence  led  up  to  the  disso- 
lution of  the  Empire  itself. 

But  the  feudal  courts  were  not  the  only  rivals  of  the 
State  in  the  administration  of  justice.  One  of  the  earliest 
disciplinary  rules  of  the  Christian  Church  urged  upon  its 
members  the  unwisdom  of  bringing  their  disputes,  espe- 
cially in  matters  connected  with  religion,  before  the  secular 
tribunals  of  the  Roman  Empire;  and,  when  that  Empire 
adopted  Christianity  as  its  official  religion  under  Constan- 
tine,  the  claim  of  the  Christian  bishops  to  exercise  juris- 
diction over  their  flocks  was  fully  acknowledged.  With 
the  fall  of  the  Western  Empire  before  the  barbarians,  the 
authority  of  the  Bishops  of  Rome  rapidly  grew;  and  the 
compact  entered  into  between  them  and  the  Prankish  in- 
vaders greatly  strengthened  the  claims  of  the  Papal  juris- 
diction, which  was  still  further  strengthened  by  the  separa- 
tion between  the  Western  (Latin)  Church  and  the  East- 
ern (Greek)  Church  in  the  eleventh  century.  Alongside 
of  the  great  Code  of  CIVIL  LAW  of  Justinian,  there  grew 
up,  in  close  imitation  of  it,  a  great  body  of  CANON  LAW, 
composed  of  decrees  of  Church  Councils,  and  Letters  and 
Decisions  ("Bulls")  *  of  the  Popes.  Moreover,  while  the 
Civil  Law  lost  much  of  its  authority  by  the  downfall  of 
the  Western  Empire,  and  was  only  treated  as  binding  in 
a  very  few  districts  of  Western  Europe,  the  Canon  Law, 
enforced  by  a  hierarchy  of  courts,  from  the  Papal  Curia 
down  through  the  provincial  courts  of  archbishops,  and 
the  consistorial  or  diocesan  courts  of  bishops,  to  the  petty 
tribunals  of  the  archdeacons,  bound  the  consciences  of  all 
Christian  men,  and  was  daily  enforced  by  a  whole  host  of 
clerical  officials.  Even  the  great  Norman  Conqueror  of 
England,  in  a  famous  Ordinance,  had  to  recognise  the 

1  So  called  from  the  butla  or  leaden  seal  by  which  they  were 
authenticated. 


172    THE   STATE   AND    THE   NATION 

authority  of  these  tribunals  in  all  "spiritual  pleas";  though 
he  imposed  certain  sharp  rules  against  excessive  ecclesias- 
tical claims. 

Beyond  these  great  rivals,  there  were  innumerable  petty 
tribunals  with  their  local  jurisdictions.  As  we  have  seen 
(p.  147),  one  of  the  cherished  objects  of  a  rising  munici- 
pal borough  was  to  have  its  own  court,  in  which  alone  its 
burgesses  could  be  called  to  account.  Closely  allied  in 
character  to  the  burghal  courts,  were  the  market  courts; 
for  each  market  claimed  to  have  its  court  of  "piepowders" 
(as  the  English  called  it,  from  the  dusty  feet — pieds 
poudres — of  the  suitors  who  thronged  it),  wherein  speedy 
justice  should  be  done  according  to  that  Law  Merchant 
which  was  growing  up  as  a  kind  of  European  common  law 
in  trade  matters.  Finally,  though  becoming  feebler  and 
feebler,  the  ancient  local  moots  of  the  hundred  and  the 
shire,  wherein  the  elders  or  select-men  "deemed  their 
dooms,"  i.e.  declared  the  ancient  customary  law  of  tribe 
and  clan,  still  maintained  their  claims  to  administer  "folk- 
right." 

But  the  Anglo-Norman  Kings  did  not  shrink  from  chal- 
lenging this  motley  array;  and  their  policy  in  this  respect 
showed  equal  wisdom  with  that  which  they  displayed  in 
the  closely-connected  subject  of  police.  They  made  no 
attempt  to  wipe  out  of  existence  the  old-fashioned  moots. 
Rather  at  first  did  they  insist  that  the  courts  of  the  hun- 
dred and  the  shire  should  be  held  as  aforetime.  Only,  they 
introduced  new  and  superior  methods  of  procedure,  which 
gradually  converted  them  into  royal  tribunals  for  all  se- 
rious cases.  Thus,  by  the  famous  "Assizes"  of  Clarendon 
and  Northampton,  Henry  II.,  having  put  under  the  con- 
trol of  the  sheriffs  the  old  popular  "hue  and  cry,"  raised 
on  the  discovery  of  one  of  those  "bootless  crimes"  for 
which  no  blood-fine  could  be  accepted,  made  it  the  duty 
of  deputies  from  the  hundred  moot  to  report  on  oath  the 
names  of  the  offenders  to  the  King's  Justices  on  their  cir- 
cuits, and  ordered  the  latter  to  award  instant  and  terrible 
punishment.  Thus,  by  the  institution  of  the  "Grand 


THE   STATE   AND   PUBLIC   ORDER     173 

Jury,"  did  the  King  take  over  the  old  vague  jurisdiction 
of  the  tribal  authorities  (p.  83),  and  make  himself  re- 
sponsible for  the  administration  of  CRIMINAL  JUSTICE, 
whilst  yet  recognising  the  older  tribunals.  Moreover, 
whilst  not  denying,  within  their  proper  sphere  (p.  142), 
the  claims  of  the  feudal  tribunals  (which  had  already  ab- 
sorbed a  good  deal  of  the  business  of  the  local  moots), 
he  rigidly  confined  it  within  that  sphere;  and  never,  save 
in  very  exceptional  cases  (such  as  the  Palatine  earldoms), 
did  he  recognise  the  claims  of  the  feudal  magnates  to  the 
"High"  or  even  the  "Middle"  Justice.  Moreover,  by  a 
series  of  clever  and  somewhat  unscrupulous  fictions,  too 
technical  to  be  explained  here,  he  undoubtedly  robbed  the 
feudal  tribunals  of  much  of  their  legitimate  work.  His 
great  successor,  Edward  I.,  after  the  disturbances  of  the 
Barons'  War,  closed  still  tighter  the  bounds  of  feudal 
jurisdiction,  by  his  great  Quo  Warranto  Enquiry  and  Stat- 
ute of  Gloucester  (1276);  until  the  court  of  the  manorial 
lord  became  merely  a  petty  tribunal  for  deciding  offences 
against  the  village  custom,  and  registering  the  changes  in 
the  serf-holdings  of  the  manor. 

Against  the  powerful  jurisdiction  of  the  Church,  the  An- 
glo-Norman State  had  a  sterner  struggle  to  wage.  Whilst, 
in  theory,  the  line  between  "secular"  and  "spiritual"  pleas 
had  been  drawn,  as  we  have  seen,  by  the  Conqueror,  there 
was,  in  fact,  a  vast  debatable  land  which  each  party  claimed 
as  its  own.  Particularly  the  Church  disliked  any  asser- 
tion by  the  State  of  direct  authority  over  the  persons  of 
the  clergy;  and,  when  Henry  II.  attempted  to  include 
them  in  his  famous  Grand  Jury  procedure  (p.  172),  the 
fiery  Becket  broke  into  revolt,  saying  that  the  Church 
Courts  could  well  punish  their  own  delinquents,  and  that 
"no  one  ought  to  be  twice  accused  for  the  same  offence." 
It  was  a  specious  argument;  but  Henry  knew  full  well, 
that  the  clerical  tribunals  were  not  likely  to  create  scan- 
dal by  banishing  their  clerical  convicts,  whilst  their  un- 
willingness to  shed  blood  would  prevent  them  imposing  the 
other  penalties  of  the  Assizes.  So  he  refused  to  give  way; 


174  THE   STATE   AND   THE   NATION 

and  a  compromise  was  with  difficulty  arrived  at,  which 
might  have  saved  the  situation,  had  it  not  been  spoiled 
by  the  outburst  of  temper  which  led  to  the  murder  of  the 
archbishop  in  his  own  cathedral.  In  the  face  of  this  hor- 
rible scandal,  which  convulsed  all  Christendom,  and  made 
of  Becket's  tomb  a  pilgrims'  shrine,  Henry  and  his  suc- 
cessors could  not  maintain  even  the  compromise  of  1164;  1 
and,  under  the  thin  fiction  of  "benefit  of  clergy,"  not  only 
real  clerics,  but  any  man  who  could  translate  a  passage 
from  Scripture  which  was  known  beforehand  to  be  always 
used  as  a  test,  could  get  off  after  conviction,  at  least  once, 
if  not  oftener.  So  that,  in  spite  of  the  steady  pressure  of 
the  King's  Courts  in  other  matters,  and  their  writs  of  pro- 
hibition against  clerical  interference  in  secular  lawsuits, 
the  exemption  of  the  clergy  from  the  criminal  law  contin- 
ued, until,  with  other  abuses,  it  was  destroyed  by  the  re- 
ligious Reformation  of  the  sixteenth  century. 

But,  of  course,  it  was  not  to  be  supposed,  that  the  State's 
Courts  would  have  been  really  successful  in  squeezing  out 
all  their  competitors,  unless  they  had  put  something  much 
better  in  the  place  of  the  old  remedies  of  the  feud,  and 
the  archaic  trial  by  battle  and  ordeal  (pp.  82-83).  It  was, 
in  fact,  their  positive  success  in  this  direction  which  really 
made  English  jurisprudence  at  the  end  of  the  Middle  Ages 
the  most  enlightened  in  Europe. 

We  must  remember  that,  in  however  mild  a  form,  feu- 
dal principles  were  definitely  recognised  in  the  England  of 
the  eleventh  and  twelfth  centuries.  The  laws  of  that  pe- 
riod, even  the  Assizes  of  Henry  II.,  recognise  the  feudal 
jurisdiction  of  the  lord  over  his  vassal.  But  this  recogni- 
tion cut  both  ways.  If  it  hampered  the  Kings  in  their  work 
of  keeping  the  feudal  courts  in  check,  it  enabled  them,  as 

1  There  is  a  technical  difficulty  here,  in  the  fact  that  the  Con- 
stitutions of  Clarendon,  which  embodied  the  compromise  between 
Henry  and  Becket,  are  two  years  older  than  the  Assize  of  Claren- 
don, which  instituted  the  Grand  Jury  system.  The  latter  prob- 
ably only  confirmed  a  practice  which  had  been  put  into  use 
some  years  earlier. 


THE   STATE   AND   PUBLIC   ORDER     175 

Lords  Paramount,  to  claim  jurisdiction  over  their  biggest 
subjects,  their  "tenants-in-chief"  (p.  161). 

To  this  principle  is  directly  due  the  fact  that,  in  the  crit- 
ical century  which  followed  the  Norman  Conquest,  all  really 
dangerous  disputes  between  the  great  feudatories,  which 
might  have  threatened  the  peace  of  the  realm,  were  de- 
cided by  the  King  as  Lord  Paramount,  on  strictly  feudal 
lines,  with  the  assistance  of  his  Great  Council.  Moreover, 
the  feudal  theory,  when  strictly  enforced  by  a  powerful 
ruler,  enabled  the  under- vassal  to  appeal  "for  defect  of 
justice"  from  his  immediate  superior  to  that  superior's 
over-lord,  and  so  ultimately  to  the  King.  This  theory, 
under  the  strong  rule  of  the  Anglo-Norman  Kings,  empha- 
sised the  position  of  the  Crown  as  the  "fountain  of  jus- 
tice," and,  incidentally,  paved  the  way  for  the  recognition 
of  the  Great  Council,  the  later  House  of  Lords,  as  the  final 
court  of  appeal  from  the  lower  royal  tribunals,  a  position 
which  it  holds  to  the  present  day. 

But  the  ambition  of  Henry  II.  went  beyond  this,  and 
aimed  at  making  the  royal  justice  the  direct  resort  of  all 
his  subjects.  This  ambition  he  went  far  to  realise,  with 
the  aid  of  his  able  officials,  by  the  use  of  two  powerful  en- 
gines, the  WRIT  OF  SUMMONS,  and  the  JURY  SYSTEM. 

The  WRIT,  as  its  name  implies,  is  simply  a  letter  bearing 
the  royal  seal.  Its  uses  were  infinite;  but  the  special  appli- 
cation of  it  which  was  to  have  such  a  revolutionary  effect 
in  the  administration  of  justice,  was,  as  its  Latin  name  of 
breve  implies,  a  short  missive,  directed  to  a  person,  bidding 
him  attend  a  certain  tribunal  on  a  named  day,  to  answer 
a  complaint  made  against  him.  As  we  have  seen  (p.  80), 
one  of  the  chief  defects  of  the  older,  popular,  system  of 
legal  procedure,  was,  that  there  was  no  means,  other  than 
the  clumsy  remedy  of  DISTRESS,  of  compelling  a  recal- 
citrant defendant  to  appear  before  the  moot,  if  he  obsti- 
nately refused  to  obey  the  summons  of  the  complainant. 
But  it  was  one  thing  to  defy  the  summons  of  a  private 
person;  quite  another  to  defy  a  messenger  bearing  the 
royal  missive.  The  latter  constituted,  in  fact,  the  offence 


176   THE   STATE   AND   THE   NATION 

of  "contempt,"  which,  even  before  the  Conquest,  was 
known  as  "oferhyrnes,"  and  entailed  heavy  penalties. 
Probably  the  feudal  courts  were  not  quite  so  helpless  as 
the  popular  moots  in  this  respect;  but  even  they  were 
glad  to  make  use  of  the  royal  missive.  And  Henry  II.,  at 
some  unknown  date,  perhaps  relying  upon  the  famous 
Oath  of  Sarum  (p.  141),  laid  down  the  principle,  that  no 
one  need  answer  "for  his  freehold" — i.e.  in  a  suit  involv- 
ing title  to  a  freehold  tenement — without  the  royal  writ. 
At  first,  doubtless,  the  readiness  with  which  this  writ  was 
granted  to  suitors  in  the  feudal  courts,  appeared  to 
strengthen  the  feudal  jurisdiction;  but  if  the  feudal  mag- 
nates thought  that  they  were  by  this  means  obtaining  a 
new  lease  of  power,  they  were  soon  bitterly  undeceived. 
For,  before  very  long,  the  same  astute  officials  who  had 
devised  the  breve,  or  royal  writ  of  summons,  invented  other 
writs,  known  by  the  quaint  names  of  tolt,  and  pone,  for 
removing,  as  of  course,  the  trial  of  the  action  thus  com- 
menced, from  the  feudal  and  local  courts,  to  the  royal 
tribunals.  And  though,  under  the  weaker  rule  of  Henry's 
son  John,  the  Charter  Barons  exacted  from  the  King  a 
renunciation  of  these  (to  them)  detestable  practices,  they 
found  that  the  tide  had  set  so  strongly  against  them,  that 
their  apparent  victory  was  neutralised  by  the  use  of  the 
most  glaring  fictions.1 

For,  by  the  date  of  the  Great  Charter,  the  second  of  the 
great  engines  of  royal  justice,  TRIAL  BY  JURY,  had  definitely 
made  its  way  into  use.  As  has  been  before  hinted,  the 
notion  that  the  jury  was,  originally,  an  effort  of  popular 
self-assertion,  is  wholly  unfounded.  The  right  to  compel 
a  body  of  neighbours,  "men  of  the  vicinage,"  to  answer 
upon  oath  the  enquiry  of  a  royal  official,  was  originally  a 
prerogative  of  the  Roman  fisc  or  treasury,  which,  after 
passing  to  the  Frankish  Emperors,  had  been  adopted  by 

1  The  favourite  device  of  the  royal  officials  was  to  add,  to  the 
words  of  the  summons  to  the  royal  court,  the  words  "because  the 
lord  of  that  fief  has  renounced  his  jurisdiction"  (quia  dominus 
istius  feodi  inde  remisit  curiam). 


THE   STATE   AND    PUBLIC   ORDER     177 

the  Dukes  of  Normandy,  and  by  them  introduced  into 
England.  Its  primary  object  was,  to  discover  the  exist- 
ence of  imperial  or  royal  property  or  rights,  which  the 
State's  officials  suspected  to  be  concealed.  As  such,  it  was 
used  with  telling  effect,  and  on  a  magnificent  scale,  in  the 
compilation  of  Domesday  Book,  which  was  drawn  up  on 
the  testimony  of  sworn  juries  of  the  hundreds.1  In  the 
following  century,  it  was  also  freely  used  to  assess  on  each 
locality  its  proper  quota  of  the  Saladin  Tithe  (p.  156),  and 
those  other  levies  on  movables  which  were  becoming  such 
an  unpleasant  feature  of  royal  rule,  and  even  to  collect 
the  amounts  thus  assessed.  We  have  seen  also  (p.  172), 
that  it  was  employed  to  denounce  offenders  against  the 
Assizes  of  Clarendon  and  Northampton.  But  its  special 
use  for  our  immediate  purpose  was  to  substitute  for  the 
archaic  methods  of  TRIAL  BY  BATTLE  and  ORDEAL  (pp. 
81-82),  a  trial  by  the  "truth- telling"  (verdict)  of  persons 
sworn  (jurati)  to  answer  the  questions  of  a  royal  judge. 

Its  first  use  for  this  purpose  was  that  adopted  by  the 
famous  Grand  Assize  of  Henry  II.  By  this  celebrated 
Ordinance,  as  is  explained  by  the  royal  Justitiar,  Ralph 
Glanville  (who  was,  probably,  its  framer),  a  defendant 
challenged  to  battle  in  a  "writ  of  right,"  or  action  to 
recover  a  freehold,  might,  instead  of  accepting  the  chal- 
lenge, "put  himself  upon  the  Assize" — that  is,  get  from 
the  royal  Chancery  a  writ  to  the  sheriff  bidding  him 
summon  from  the  county  wherein  the  land  lay,  four 
knights,  who  should  choose  twelve  more,  the  whole  sixteen 
to  swear  upon  oath  "which  of  the  parties  had  the  greater 
right."  The  Grand  Assize  itself,  by  reason  of  its  com- 
plexity, and  the  delays  or  excuses  (essoins)  which  it  per- 
mitted, soon  became  unpopular,  and  was  superseded  by  a 
rapid  extension  of  the  same  idea  to  simple  questions  of 
fact,  at  first  only  connected  with  freehold  estates,  but 
afterwards  to  all  kinds  of  "trespasses"  or  wrongs;  until, 

*As  is  well  known,  the  immediate  object  of  the  Conqueror  in 
ordering  the  drawing  up  of  Domesday  Book  was  to  revive  the 
ancient  Danegeld.  "Domesday  Book  is  a  Geld  Book"  (Maitland): 


178  THE   STATE   AND   THE   NATION 

by  the  end  of  the  thirteenth  century,  it  had  become  the 
ordinary  method  of  trying  CIVIL  ACTIONS.  At  first,  there 
was  a  good  deal  of  resistance,  not  merely  by  the  feudal 
courts  (which  tried,  unsuccessfully,  to  get  hold  of  it),  but 
by  the  old  local  tribunals  of  the  shire  and  hundred.  But 
the  somewhat  unscrupulous  use  of  a  section  of  the  Statute 
of  Gloucester  of  1276  (p.  173),  enabled  the  royal  judges  to 
restrict  the  jurisdictions  of  their  rivals  to  cases  of  trifling 
amount,  which,  owing  to  the  continued  fall  in  the  value  of 
money,  became  more  and  more  trifling  as  time  went  on. 
Thus,  by  the  end  of  the  thirteenth  century,  the  jury, 
though  still  far  from  "popular"  in  any  sense,  came  to  be 
regarded  as  the  ordinary  method  of  trial  in  civil  cases, 
and,  incidentally,  transferred  the  whole  of  the  administra- 
tion of  justice  in  civil  cases,  for  the  reason  above  given,  to 
the  courts  of  the  State. 

Nor  was  the  criminal  jurisdiction  long  in  following.  It 
will  be  remembered,  that  the  same  masterful  King  who 
published  the  Grand  Assize  had  already  laid  hands  on 
this  by  the  institution  of  the  Grand  Jury  of  accusation 
(p.  172).  But  the  Assizes  of  Clarendon  and  Northampton 
still  recognised  the  ancient  methods  of  TRIAL  by  the  oath 
of  the  kindred  or  by  the  ordeal  (pp.  81-82).  Just  one  half- 
century  later,  however,  in  the  very  year  in  which  the 
Barons  were  wringing  from  John  the  Great  Charter,  a 
Papal  decree  forbade  the  clergy  throughout  Christendom 
to  take  any  part  in  the  working  of  the  ordeal  system, 
which  thereupon  fell  into  disrepute;  while  it  was  generally 
felt  to  be  scandalous  to  allow  a  man  solemnly  accused  by 
the  Grand  Jury  to  get  off  by  the  mere  oath  of  his  kindred, 
or  "wager  of  law."  Here  was  a  dilemma,  which  the  royal 
judges,  apparently,  did  their  best  to  solve,  by  persuading 
the  accused  to  "put  himself  on  the  country,"  i.e.  to  sub- 
mit himself  to  the  verdict  of  twelve  jurors  hastily  sum- 
moned from  the  hundred  in  which  the  crime  was  alleged 
to  have  been  committed.  By  the  end  of  the  fourteenth 
century,  at  the  latest,  this  process  had  become  recog- 
nised as  the  ordinary  course  of  a  criminal  trial;  and 


THE   STATE   AND    PUBLIC   ORDER     179 

the  "Petty  Jury"  of  twelve  (so  called  to  distinguish  it 
from  the  Grand  Jury  of  accusation)  had  become  the 
normal  oracle  which  pronounced  "Guilty"  or  "Not  Guilty" 
in  serious  criminal  cases.  But  the  informal  origin  of 
this  method  of  trial  long  remained  marked  by  the  curious 
fact  that,  if  the  accused  refused  to  "put  himself  on  the 
country,"  he  could  not  be  tried  by  a  jury,  but  only  sub- 
jected to  the  peine  forte  et  dure,  i.e.  kept  in  prison  under 
heavy  weights  and  fed  on  stale  bread  and  stinking  water, 
until  he  saw  reason.  And,  as  is  well  known,  the  Charter 
Barons,  though  they  failed  in  securing  their  jurisdiction 
over  their  own  vassals  (p.  173),  did  succeed  in  securing  for 
their  own  order  that  "trial  by  peers,"  which  they  set  up 
in  the  Charter  as  the  alternative  of  the  then  new-fangled 
and  hated  trial  by  jury. 

Thus,  by  the  end  of  the  fourteenth  century,  the  State 
had  won,  in  England,  its  battle  for  the  administration  of 
justice,  and,  subject  only  to  the  clerical  privileges  of 
"benefit  of  clergy"  and  asylum  or  "sanctuary"  (p.  83), 
had  become  the  sole  dispenser  of  justice  in  important 
secular  cases,  save  only  those  which  were  disposed  of  by 
the  COURTS  MERCHANT  of  the  privileged  boroughs  (p.  147), 
whose  work  was  not  brought  directly  within  its  sphere  till 
the  epoch-making  rule  of  Lord  Mansfield  in  the  eighteenth 
century.  To  cope  with  this  growing  mass  of  business,  the 
State  had  organised,  long  before  that  date,  the  famous 
"King's  Courts  of  Common  Law" — the  King's  Bench  (to 
deal  with  matters  in  which  the  Crown  was  specially  in- 
terested, including  serious  criminal  cases),  the  Common 
Pleas  (for  the  trial  of  cases  between  subject  and  subject), 
and  the  Exchequer  (for  revenue  cases).  And,  when  the 
conservative  character  of  these  tribunals  threatened  to 
fail  the  growing  needs  of  the  community,  the  "equity 
jurisdiction"  of  the  Chancellor  (the  famous  "Court  of 
Chancery")  applied  (though  without  the  aid  of  a  jury)  the 
royal  prerogative  to  prevent  "defect  of  justice."  Finally, 
when  the  petty  criminal  jurisdiction  of  the  old  local  moots 
and  the  manorial  courts  at  last  broke  down,  the  creation  of 


180  THE   STATE  AND   THE  NATION 

local  Justices  of  the  Peace  in  the  fourteenth  century  served 
the  treble  purpose  of  preparing  cases  for  the  visitation 
of  the  "red  judges"  on  their  circuits,  of  relieving  them 
of  the  trial  of  the  less  serious  among  the  "felonies"  or 
capital  crimes,  by  the  aid  of  local  juries,  and,  somewhat 
later,  of  disposing  in  a  "summary"  manner  of  petty  criminal 
cases.  But  it  was  not  until  the  introduction  of  secret  non- 
jury  trials  and  torture  by  the  Tudor  monarchs  in  the 
sixteenth  century,  in  the  famous  STAR  CHAMBER,  that 
the  country  awoke  to  the  value  of  the  jury  system  as  a 
bulwark  of  liberty,  and  it  became  really  "popular,"  in  the 
ordinary  sense  of  the  term. 

We  have  dwelt  at  some  length  on  the  methods  by 
which  the  State  in  England  early  achieved  its  great  victory 
in  securing  the  administration  of  justice;  for  it  is  to  these 
methods,  almost  as  much  as  its  unique  success  in  the 
adoption  of  political  representation,  that  England  owed 
that  reputation  for  political  liberty  which  made  her,  in 
later  years,  the  admiration  of  great  Continental  jurists 
like  Montesquieu,  and  great  writers  like  Voltaire.  For, 
whilst  France  was  groaning  under  the  oppressive  system 
of  lettres  de  cachet,  and  Germany  was  still  under  the  shadow 
of  a  cruel  criminal  system  based  on  the  Imperial  despotism 
of  the  Roman  Law,  England  was,  despite  a  barbaric 
criminal  code,  at  least  free  from  a  despotic  system  of 
police,  and  a  scheme  of  criminal  justice  which  assumed 
the  guilt  of  every  accused  person,  and  subjected  him  to 
torture  to  extract  a  confession  from  him.  But  we  must 
now  indicate  briefly  why  the  State  in  the  other  countries  of 
Western  Europe  failed  in  achieving  similar  results. 

An  old  German  maxim  shows  that  the  Frankish  mon- 
archy, with  its  inherited  traditions  of  the  Roman  Empire, 
at  first  made  a  serious  attempt  to  link  up  the  State  with 
the  administration  of  ordinary  justice.  "By  Richter's  ban, 
by  Asega's  Urteil,  by  Bauer's  will" — so  runs  the  maxim 
describing  the  process  of  a  lawsuit.  The  Richter  is  the 
royal  official,  whose  ban,  or  summons,  bids  the  defendant 
attend  the  moot,  where  the  Asega,  or  "forth-speaker," 


THE   STATE   AND   PUBLIC   ORDER     181 

the  ancient  clan  chief,  pronounces  the  "doom"  of  the 
elders.  But  the  sentence  is  left  to  bs  executed  by  the 
Bauer,  or  peasant,  himself,  i.e.  the  plaintiff  (as  we  should 
say),  with  consequences  which  may  be  easily  imagined. 
And,  as  we  have  seen,  the  rise  of  feudalism  in  the  Prankish 
Empire,  in  the  eighth  and  ninth  centuries,  practically  de- 
prived the  State  of  all  direct  control  of  the  feudal  territories, 
and  handed  over  the  latter  to  the  feudal  tribunal,  with  its 
"court  of  peers."  An  odd  and  unexpected  variation  seems 
to  have  taken  place  in  what  we  now  call  Spain,  where  much 
of  the  administration  of  justice  appears  to  have  been 
handed  over  to  the  elected  alcaldes,  or  burghal  judges,  of 
the  great  cities  of  Castile  and  Aragon. 

As  a  natural  consequence,  the  direct  efforts  of  the  State 
on  the  Continent  were  chiefly  confined  to  the  domains,  or 
private  estates,  of  the  rulers.  Here  the  German  Vogte,  the 
French  prevots  and  baillis,  the  Spanish  adelantados  and 
perquisidores,  held  their  courts  in  the  name  of  the  King; 
and,  in  successful  monarchies  like  the  French,  gradually 
absorbed  a  good  deal  of  the  rival  feudal  jurisdictions.  But 
these  officials  were  rather  magistrates,  or  administrators, 
than  judges  weighing  evidence  impartially  between  accuser 
and  accused.  Even  though  the  French  Kings  made  a 
definite  effort  to  introduce  the  enquete,  or  local  enquiry, 
it  was  never  connected  up,  as  was  the  jury  in  England, 
with  local  institutions,  and  never  came  to  be  regarded  as  a 
bulwark  against  arbitrary  injustice.  Consequently,  even 
where  royal  justice  grew  at  the  expense  of  its  rivals,  it 
enlisted  no  popular  sympathy.  Even  the  establishment  of 
great  appeal  tribunals,  the  Reichskammergericht  of  Maxi- 
milian in  Germany,  the  Parlements  of  Paris  and  the  French 
provinces,  failed  to  inspire  confidence;  for  the  unhappy 
suitor  found  himself  enmeshed  in  the  subtleties  of  that 
Roman  jurisprudence  which  was  becoming  the  favourite 
study,  after  the  revival  of  learning,  of  the  French  "legists" 
and  the  German  "assessors." 

And  each  of  the  two  leading  countries  of  Continental 
Europe  had  its  peculiar  weakness  in  judicial  affairs,  for 


182  THE   STATE   AND   THE   NATION 

which  it  is  hard  to  account  by  any  general  cause.  In 
France,  it  was  the  extraordinary  practice  which  arose  in 
the  later  Middle  Ages,  of  making  the  office  of  the  royal 
judge  saleable  and  hereditary.1  To  an  Englishman,  this 
practice  sounds  so  startling,  so  utterly  subversive  of  funda- 
mental principles,  that  it  is  necessary  to  point  out  that 
it  was,  in  fact,  found  to  be  compatible  with  a  good  deal 
of  uprightness  and  independence  in  the  judges  who  lived 
under  it.  In  the  later  days  of  the  French  monarchy,  one  of 
the  chief  checks  upon  the  royal  absolutism  was  the  claim 
of  the  Parlements  to  refuse  to  enforce  royal  edicts  which 
had  not  been  registered  by  them;  and,  though  registra- 
tion could  be  enforced  by  the  curious  process  known  as  a 
lit  de  justice,  or  personal  order  of  the  King,  yet  even  the 
most  autocratic  of  monarchs  shrank  from  such  an  un- 
popular step.  The  tragedy  in  Germany  was  that,  with  the 
definite  break-up  of  the  Empire  in  the  fourteenth  and 
fifteenth  centuries,  the  "reception"  of  the  Roman  Law 
resulted  in  the  definite  imposition  upon  the  Imperial 
tribunals,  and  their  feudal  imitators,  of  an  alien  and  cum- 
bersome procedure,  alike  cruel  and  dilatory,  with  results 
so  grotesque  as  to  be  hardly  credible  by  the  modern  reader. 
It  is,  of  course,  well  known  to  students,  that  the  States  of 
Continental  Europe,  after  sharing  in  the  general  establish- 
ment of  representative  institutions  in  the  thirteenth  cen- 
tury, gradually  allowed  those  institutions  to  decline  in 
favour  of  absolute  monarchy.  But  it  is  not  always  realised, 
that  an  equally  disastrous  failure  to  develop  sound  sys- 
tems of  justice  contributed,  hardly  less,  to  the  general 
break-up  of  political  order  symbolised  by  the  French 
Revolution. 

*An  open  recognition  of  the  practice  is  contained  in  the  royal 
Arrfy  Paulette  of  1604. 


CHAPTER    XIII 

THE  STATE  AND  POLITICAL  REPRESENTATION 

THE  change  from  the  medieval  to  the  modern  State  is 
definitely  marked  by  the  adoption  of  the  great  principle  of 
POLITICAL  REPRESENTATION.  So  far  as  is  recorded,  the 
States  of  the  ancient  world  knew  nothing  of  this  principle; 
even  the  enlightened  governments  of  the  Greek  States  and 
the  Roman  Empire  were  ignorant  of  it,  probably  because 
their  institutions  were  based  on  the  circumstances  of  civic 
life,  in  the  narrower  sense,  which,  by  reason  of  its  smaller 
membership  and  narrowness  of  territory,  felt  no  need  of 
the  principle.  Political  representation  is,  however,  the 
great  engine  which  has  enabled  States  of  the  modern  world, 
with  their  vast  populations  and  wide  territories,  to  trans- 
form themselves  from  mere  military  despotisms  into  self- 
governing  communities;  and  it  is  doubtful  whether  any.  ty^ 
community  which  did  not,  at  least  in  theory,  adopt  it,  \ 
would  be  admitted  at  the  present  day  to  the  circle  of  » 
civilised  nations.  The  danger,  in  fact,  now  is,  that  a  hasty 
and  merely  superficial  adoption  of  a  principle  which  de- 
mands a  considerable  amount  of  political  education  for 
its  successful  working,  may  really  retard  the  satisfactory 
development  of  immature  communities.  It  is  worth  while 
to  spend  a  little  time  in  considering  the  history  and  char- 
acter of  this  epoch-making  principle. 

A  fundamental  mistake  is  usually  made  by  writers  who 
have  attempted  to  deal  with  the  history  of  the  subject. 
Misled  by  recent  developments,  they  have  sought  the 
origin  of  the  principle  in  a  wrong  direction.  To  the  modern 
world,  political  representation  is  the  great  engine  for  the 
support  of  freedom  against  depotism.  It  is  not,  therefore, 

183 


184  THE   STATE   AND    THE   NATION 

to  be  wondered  at,  that  students  of  its  history  should  have 
sought  its  origin  in  popular  uprisings  against  arbitrary 
authority.  In  so  doing,  however,  they  have  failed  to  allow 
for  the  working  of  that  fundamental  law  of  human  associa- 
tion, which  asserts  that  RIGHTS,  or  privileges,  nearly  al- 
ways take  their  rise  in  DUTIES,  or  liabilities.  And  they 
have  wrongly  assumed,  that  a  principle  which  is  now  almost 
universally  assumed  to  be  an  assertion  of  inherent  rights, 
necessarily  must  have  been  so  regarded  from  the  very  first. 
The  facts  of  history  are  all  against  this  view,  as  regards 
POLITICAL  REPRESENTATION. 

An  experience  which  befell  a  friend  of  the  writer  illus- 
trates, perhaps  more  vividly  than  any  general  speculation, 
the  true  origin  of  political  representation.  He  was  travel- 
ling with  a  party  of  Europeans  in  a  primitive  country 
under  the  nominal  rule  of  an  Oriental  monarch,  furnished 
with  an  escort  by  its  ruler.  One  night,  valuables  dis- 
appeared from  the  camp.  The  travellers,  naturally,  com- 
plained to  their  escort.  The  latter,  rough-and-ready 
soldiers,  discovered,  hidden  away  in  the  jungle  near  the 
camp,  a  native  village  of  herdsmen  and  farmers.  Into  this 
village  they  rode,  distributing  blows  at  random  on  any 
villagers  encountered,  and  demanding  the  return  of  the 
stolen  goods.  The  villagers  loudly  (and  probably  with 
truth)  protested  their  innocence  of  the  theft.  The  soldiers 
remained  indifferent.  Rounding  up  the  villagers,  they 
seized  three  or  four  of  the  most  prosperous-looking  and 
venerable,  and  announced  that,  if  the  criminals  were  pro- 
duced within  a  few  days,  or,  failing  that,  the  loss  made 
good,  the  hostages  would  be  released.  If  not,  the  village 
would  be  plundered,  and  the  fate  of  the  hostages  un- 
pleasant. The  villagers  murmured,  but  complied  by  per- 
forming the  only  alternative  in  their  power,  viz.  the  making 
good  of  the  loss. x  The  Europeans  were,  of  course,  horrified 
at  this  primitive  procedure,  and  begged  that  the  victims 

*The  reader  will  not  fail  to  notice  a  reappearance  of  these 
crude  methods  in  the  proceedings  of  certain  modern  "armies  of 
occupation." 


POLITICAL   REPRESENTATION    185 

might  be  spared.  But  the  soldiers  made  light  of  their 
scruples,  and  pointed  to  the  successful  result  of  their 
measures,  which  probably  included  a  substantial  bonus 
for  their  own  efforts  in  producing  it. 

The  story  is  typical  of  early  political  methods.  Though 
the  subjects  of  the  primitive  State  have  few  rights,  they 
have  many  liabilities.  A  man,  perhaps  a  royal  messenger 
or  other  person  under  the  special  protection  of  the  ruler,  is 
found  murdered  in  the  jungle  or  on  the  waste.  The  three 
nearest  villages  must  produce  the  murderers,  or  pay  the 
murder-fine. x  The  King  demands  a  sum  of  money,  under 
one  pretext  or  another,  of  a  prosperous  town.  He  cannot 
be  bothered  to  assess  the  proper  proportions  on  the  in- 
habitants. His  bailiff  summons  two  or  three  of  the  wealthi- 
est to  his  presence,  and  announces  that,  if  the  money  is 
not  paid  by  a  certain  day,  he  will  seize  goods  at  random. 
Meanwhile,  the  unhappy  "select-men"  are  allowed  to  de- 
part, to  arrange  the  matter  with  their  fellow-townsmen, 
but  only  on  giving  security  to  reappear  with  the  money  on 
the  appointed  day.  A  similar  process  is  adopted  if,  in- 
stead of  money,  the  ruler  requires  a  quota  of  recruits.  But 
here  the  royal  demands  are  more  specific;  for  recruits 
differ  considerably  in  value,  and  only  sturdy  and  active 
men  will  be  accepted. 

Thus,  the  earliest  political  representatives  were  not 
agents,  or  delegates  charged  with  asserting  the  claims  of 
their  constituents,  but  HOSTAGES,  held  to  ransom  for  the 
satisfaction  of  claims  put  forward  by  the  authority  with 
the  strong  hand.  If  any  further  proof  of  this  assertion  be 
required,  it  will  be  found  in  the  well-known  fact  of  the  un- 
willingness of  the  earliest  "constituencies"  to  accept  the  > 
honour  of  being  "represented,"  and  the  rule  that,  immedi- 
ately on  being  elected,  the  deputies  of  the  earlier  Parlia- 
ments had  to  give  security  (manucaption — hand-holding)  to 
appear  before  the  King  on  the  day  fixed  for  the  assembly. 

1  It  was,  perhaps,  the  existence  of  this  rule  which  gave  Henry 
II.  of  England  the  hint  which  he  afterwards  expanded  into  the 
.Assize  of  Clarendon  (p.  172). 


186  THE   STATE   AND    THE   NATION 

Their  position  was  unenviable.  If  they  refused  the  royal 
demands,  they  were  simply  locked  up  till  they  were  in 
a  better  frame  of  mind.  If  they  promised  to  fulfil  them, 
they  went  home  to  meet  the  reproaches  of  their  fellows, 
who  had  to  pay.  Excuses  were  rarely  allowed.  One  of 
the  quaintest  is  that  which  Norman  William  graciously 
accepted  as  a  ground  for  relaxing  the  murder-fine.  If 
the  deputies  could  prove  the  victim  to  be  an  English- 
man, he  would  say  no  more  about  it.  So  "presentment 
of  Englishry"  was,  for  a  time,  a  favourite  defence  of  the 
accused  townships. 

This  seems  to  have  been  the  point  which  the  State  had 
reached  in  England  at  the  beginning  of  the  thirteenth 
century.  Partly  through  the  regular  presence  of  the 
"reeve,  priest,  and  four  good  men"  of  the  township  at  the 
hundred  and  shire  moots  (p.  169),  partly  by  the  newly- 
instituted  jury  system  previously  described  (pp.  176-79), 
the  King  had  accustomed  the  local  units  to  depute  certain  of 
their  members  to  meet  his  officials,  and  answer  the  royal 
demands  at  stated  intervals.  Whether  there  was  any  cor- 
responding principle  at  work  on  the  Continent,  it  is  dif- 
ficult to  say.  Probably  the  traditions  of  absolutism 
inherited  from  the  Roman  Empire,  whose  officials  recog- 
nised no  intermediary  between  them  and  the  individual 
citizen,  perhaps,  still  more,  the  independence  of  the  great 
feudal  nobles,  and  their  resolute  policy  of  keeping  the 
royal  officers  outside  their  fiefs,  prevented  a  similar  develop- 
ment there.  We  hear,  however,  a  good  deal  about  a  certain 
class  of  persons  whom  the  Latin  texts  call  scabini — the 
French  echevin,  the  German  Schultheiss — who  were  required 
by  the  Imperial  decrees  to  attend  the  sessions  (placita)  of 
the  Frankish  counts  and  mis  si.  Though  it  has  been  strenu- 
ously argued  by  a  distinguished  historian  of  the  Middle 
Ages,  that  these  persons  were  officials,  chosen  on  each 
occasion  by  the  royal  count  or  special  emissary,  it  seems 
quite  possible  tint  they  were  not  official  in  any  other  sense. 
Tt  is  important  to  remember  that  there  was,  as  yet,  no  ques- 
tion of  ELECTION,  i.e.  of  competition  between  candidates 


POLITICAL   REPRESENTATION    187 

eager  for  the  honour  of  representing  their  communities. 
Much  more  probably,  the  selection  was  either  arbitrary, 
at  the  discretion  of  the  royal  official,  or  treated  as  a  burden 
to  be  borne  by  the  oldest  or  richest  members  of  the  com- 
munity, or,  as  remained  the  rule  for  centuries  in  the  Spanish 
Cortes,  in  rotation  by  all  members,  or,  finally,  according 
to  the  casting  of  lots. 

Naturally,  one  of  the  most  pressing  and  regular  require- 
ments made  by  the  State  from  its  subjects  was  the  payment 
of  taxes.  The  Prankish  Emperors  had  inherited  from  the 
Roman  Empire  a  searching  system  of  taxation;  but  it  had 
decayed  in  their  careless  hands,  and,  as  has  before  been 
pointed  out,  been  replaced  by  the  feudal  theory  that  the 
King  should  "live  of  his  own,"  i.e.  by  the  produce  of  his 
vast  domains,  and  his  numerous  prerogative  rights  of  for- 
feiture, wardship,  escheat,  fines  on  inheritance  and  aliena- 
tion of  fiefs,  and  the  like  irregular  sources  of  revenue.  But 
these,  owing  to  various  causes,  among  which  not  the  least 
was  the  fall  in  the  purchasing  power  of  money,  were  con- 
tinually proving  inadequate;  and  the  frequent  quarrels 
between  the  Kings  and  their  nobles  about  money  claims, 
were  a  proof  of  the  acuteness  of  the  problem.  One  of  the 
most  sweeping  claims  of  the  monarchy,  all  over  Europe, 
was  to  "tallage,"  or  tax  arbitrarily,  all  the  serf  classes^ 
presumably  on  the  ground  that,  being  unfree,  they  had  no 
proprietary  rights.  But  this  dangerous  claim  was  opposed, 
both  by  the  feudal  magnates,  who  desired  to  do  their  own 
tallaging  of  their  serfs,  and,  still  more  resolutely,  by  the 
great  towns,  whose  citizens,  by  some  process  of  reasoning 
never  made  thoroughly  clear,  were  assumed  to  be  unfree, 
and  which  were  tempting  victims  of  such  a  claim.  For  a 
time,  apparently,  this  claim  was  compromised  by  the  various 
"Charters"  wrung  from  the  Kings  by  the  feudal  magnates, 
in  which  the  "aids  and  services"  of  the  feudal  vassal  were 
rigidly  defined,  and  by  the  borough  or  municipal  charters, 
which,  as  we  have  seen  (p.  147),  in  return  for 
substantial  tribute,  contained  grants  of  exemption  from 
irregular  claims.  In  England,  as  has  been  noted 


188  THE   STATE   AND    THE   NATION 

(p.  177),  the  occasional  levy  of  the  Danegeld  was  converted, 
by  the  astuteness  of  the  Anglo-Norman  officials,  into  the 
regular  carucage  or  hidage,  a  tax  assessed  on  the  value  of 
land,  somewhat  on  the  model  of  the  Roman  tribute,  which 
the  Frankish  rulers  of  the  Continent  had  allowed  to  fall 
into  decay.  And,  as  foreign  commerce  grew,  the  Kings 
began  to  exact  port  dues,  or  "customs,"  as  the  price  of 
their  protection  of  the  stranger-merchant,  or  for  maintain- 
ing, for  the  benefit  of  their  own  traders,  the  police  of  the 
seas.  Still,  the  State  found  itself  without  sufficient  re- 
sources, and  endeavoured  to  fill  the  gap  with  all  sorts  of 
irregular  levies  or  maletoltes,  which,  naturally,  provoked 
resistance. 

It  was,  apparently,  in  the  twelfth  century,  that  the 
rulers  of  Western  Europe  began  to  adopt  the  practice  of 
dealing  with  the  deputies  of  their  subject  communities,  on 
the  subject  of  taxation,  no  longer  by  individual  or  local 
action,  but  as  a  whole,  by  summons  to  a  central  assembly, 
or  Parliament. *  The  idea  was  not  entirely  new;  for  it  was, 
after  all,  but  an  expansion  of  the  feudal  idea,  that  a  lord 
must  consult  his  vassals  when  any  important  step  affecting 
their  interests  was  toward.  Accordingly,  we  find,  almost 
invariably,  that  the  nucleus  of  the  new  body  is  the  nobles 
or  magnates — the  PROCERES,  "greater  barons,"  prelates — 
the  great  tenants-in-chief  (p.  161)  of  the  Crown.  But,  in 
the  twelfth  and  thirteenth  centuries,  we  note  that  to  these 
are  added  deputies  of  the  "third  estate" — the  roturiers  of 
France,  the  caballeros  of  Castile,  the  "knights  of  the  shire" 
of  England,  the  injanzones  of  Aragon,  and  the  citizens  of  the 
privileged  or  chartered  towns.  These  "estates"  were,  ap- 
parently, formed  on  the  model  of  older  systems  which 
existed  in  the  feudal  fiefs;  for  we  read  of  the  "estates"  of 
Normandy,  Languedoc,  Bavaria,  Saxony,  and  the  like,  as 
well  as  of  the  "States-General"  of  France  and  the  "Diets" 

1  The  word  "Parliament"  is  French,  and  is  said  to  have  been 
first  used  of  the  assembly  summoned  by  Louis  VII.  in  1146. 
But,  in  later  times,  the  Parlements  of  the  French  kings  were 
law  courts,  not  legislative  assemblies. 


POLITICAL   REPRESENTATION    189 

of  Germany;  and  one  of  the  reasons  for  the  success  of  the 
English  Parliament  may  have  been  its  freedom  from  pro- 
vincial rivals.  The  Diets  of  the  German  Empire  were 
particularly  weak,  not  only  on  account  of  such  rivalry,  but 
from  the  fact  that  they  appear  to  have  omitted  entirely 
the  representatives  of  the  lesser  vassals,  and  comprised 
only  the  Imperial  Electors  (p.  164),  the  princes  ''spiritual 
and  lay)  of  the  great  fiefs,  and  the  deputies  of  the  Imperial 
cities. 

It  was  not  unnatural,  that  bodies  summoned  for  the 
express  purpose  of  granting  subsidies  should  quickly  take 
up  the  attitude,  that  all  attempts  to  levy  new  taxation 
without  their  consent  were  illegal.  And,  accordingly,  we 
find  this  claim  rapidly  formulated,  and,  after  a  sharp 
struggle,  reluctantly  conceded,  by  the  rulers  of  the  State. 
By  the  middle  of  the  fourteenth  century,  the  principle  may 
be  said  to  have  been  conceded,  not  only  in  England,  but 
in  Spain,  Germany  (where  the  central  government  was 
feeble),  and  even  in  France.  But  it  is  one  of  the  most 
striking  facts  in  the  history  of  Western  Europe,  that  in  no 
case,  save  that  of  England,  was  this  apparent  victory  of 
popular  aspirations  really  a  fruitful  achievement,  even  in 
finance,  to  say  nothing  of  other  fields  of  State  activity. 
What  were  the  reasons  for  this  striking  difference  of  results? 

Undoubtedly,  much  must  be  attributed  to  the  general 
conditions  of  England,  previously  alluded  to  (p.  159) — the 
compactness  and  wealth  of  the  country,  the  weakness  of 
English  feudalism,  the  consequent  absence  (save  during 
brief  epochs)  of  the  scourge  of  private  war,  the  judicious 
use  by  the  Anglo-Norman  monarchy  of  the  ancient  in- 
stitutions of  the  country;  but,  none  the  less,  there  were 
special  features  in  the  scheme  of  English  political  repre- 
sentation which  made  for  success. 

One  of  these  was  the  determination,  previously  alluded 
to  (p.  186),  of  the  Crown,  that  no  alleged  limitations  of  the 
authority  of  the  deputies  should  be  pleaded  as  an  excuse 
for  refusing  to  answer  the  royal  demands.  The  French 
Kings  of  the  fifteenth  century,  when  reproached  for  levying 


190  THE   STATE   AND   THE   NATION 

taxes  without  the  consent  of  the  States-General,  urged 
forcibly,  that  the  deputies  resisted  even  reasonable  and 
obviously  necessary  demands,  on  the  ground  of  want  of 
instructions.  Thus  the  French  monarchy  fell  back  on  the 
salt  tax  or  gabelle,  and  the  faille,  the  corvee  and  the  aide 
(p.  158),  till  the  final  bankruptcy  of  the  State  brought 
about  the  Revolution  of  the  eighteenth  century.  A  similar 
cause  sterilised  all  schemes  of  Imperial  taxation  in  Germany, 
till  the  Empire  itself  fell  to  pieces.  Wiser,  and  bolder  in  the 
knowledge  of  their  powers,  the  English  Commons  rarely 
refused  outright  the  royal  demand  for  subsidies,  but  im- 
posed heavy  conditions  as  the  price  of  their  liberality,  and 
openly  demanded,  not  merely  the  almost  exclusive  control 
of  finance,  but  also  a  share  in  legislation,  and,  ultimately, 
in  administration,  or  "policy."  The  first  two  demands  were 
soon  granted.  Against  the  last  the  Crown  fought  long;  but, 
ultimately,  it  became  clear  to  the  King  that  he  lost  more 
than  he  gained,  by  refusing  the  co-operation  which  Parlia- 
ment was  always  willing  to  offer  on  reasonable  terms. 
And  thus  the  complete  supremacy,  or  national  sovereignty, 
of  the  King  in  Parliament,  became  the  boast  of  English 
political  writers  by  the  end  of  the  sixteenth  century.  The 
unwillingness  of  the  Stuart  Kings  to  accept  a  position  which 
had  satisfied  their  far  abler  Tudor  predecessors,  revived  the 
struggle  between  Crown  and  Parliament,  and,  not  un- 
naturally, sharpened  the  claims  of  the  victorious  party 
against  its  rivals,  till  the  latter,  in  the  view  of  its  Con- 
tinental neighbours,  seemed  but  a  phantom  power.  But  the 
real  justification  of  the  sovereignty  of  Parliament  was  seen, 
when,  amid  the  storm  of  the  French  Revolution,  and  the 
falling  monarchies  of  1848,  the  British  throne,  secured  by 
the  support  of  the  representatives  of  its  subjects,  stood  like 
a  rock  amongst  the  drifting  leaves. 

Another  striking  feature  of  the  English  political  repre- 
sentation was  the  union  of  the  knights  of  the  shire  and  the 
burgesses  of  the  towns.  In  the  Diets  of  Germany,  as  we 
have  seen,  the  former  were  not  represented  at  all.  In  the 
French  scheme,  they  ranked  with  the  noblesse,  until  the 


POLITICAL    REPRESENTATION    191 

States-General  ceased  to  exist  at  the  beginning  of  the  seven- 
teenth century.  But  in  England  the  independence  and  the 
habit  of  command  acquired  by  the  country  gentleman  in 
dealing  with  his  tenants,  united  with  the  growing  wealth 
and  sagacity  of  the  boroughs,  made  a  formidable  combina- 
tion, which  was  strengthened  by  the  practice,  early  estab- 
lished, of  debating  apart  from  the  overpowering  influence  of 
the  great  nobles,  and  the  necessity  for  obtaining  a  majority 

in  the  united  HOUSE  OF  COMMONS.    Thus,  with  the  dis- 

i 

appearance  of  the  clerical  House,  and  the  growing  influence 
of  the  Crown  in  the  House  of  Peers,  the  Commons  were  left 
as  the  sole  expression  of  the  independent  popular  will,  and 
gradually  acquired  the  key  of  the  position.  The  one  danger 
was  the  uncertainty  of  the  borough  representation,  both  in 
the  choice  of  boroughs  to  send  members,  and  the  exercise 
of  the  borough  franchise.  The  unwillingness  of  the  towns 
to  be  represented  in  the  early  days  of  Parliament  led  to  an 
actual  struggle  for  exemption,  which  left  it  open  to  the 
sheriff  to  omit  from  his  despatch  of  "precepts"  for  borough 
elections  any  recalcitrant  boroughs;  and  when,  after  elec- 
toral privileges  had  come  to  be  so  valued,  that  they  were 
secured  by  borough  charters,  it  was  still  open  to  the  Crown 
to  extend  these  privileges  to  docile  villages  under  royal 
influence,  which  could  be  trusted  to  return  equally  docile 
members.  Equally  fatal  to  burgess  independence  was  the 
concentration  of  the  borough  franchise  in  the  hands  of 
the  municipal  rulers  of  the  borough,  especially  after  the 
"purge  of  the  corporations"  undertaken  at  the  Restora- 
tion. Thus  arose  the  close  and  corrupt  "pocket"  boroughs 
which  were  the  scandal  of  the  eighteenth  century,  and  which 
did  so  much  to  destroy  the  efficacy  of  the  Commons  House, 
until  they  were  swept  away  by  the  Reform  of  1832. 

In  view  of  proposals  recently  made,  in  this  country  and 
elsewhere,  for  a  radical  change  in  the  character  of  political 
representation,  it  seems  desirable  at  this  point  to  emphasise 
the  two  fundamental  principles  on  which  political  repre- 
sentation, as  it  first  appeared  in  Western  Europe,  was 
based;  leaving  a  criticism  of  the  new  proposals  for  a  later 


192   THE   STATE   AND   THE   NATION 

chapter.  These  two  fundamental  principles  were  COM- 
MUNITY and  LOCALITY. 

It  is  true  that,  at  first  sight,  the  most  obvious  feature 
of  the  medieval  Parliaments  is  their  class  character. 
Medieval  society,  even  in  Western  Europe,  recognised  cer- 
tain social  ranks,  which  were  regarded  as  so  inevitable, 
that  an  ancient  Scandinavian  legend,  the  Elder  Edda,  in  a 
vivid  passage, *  treats  them  as  coeval  with  the  origin  of 
society.  The  noble,  the  knight,  the  priest,  the  burgess,  and 
the  serf,  are  the  typical  figures  of  the  social  drama.  The 
last  could,  of  course,  claim  no  representation  in  the  national 
assembly;  for  he  had,  in  theory,  no  independent  existence — 
he  was  in  his  lord's  mund,  or  guardianship. 2  But  the  other 
ranks  were  clearly  reflected  in  the  organisation  of  the 
medieval  Parliament;  though,  as  we  have  seen  (p.  188),  not 
always  in  the  same  way. 

But,  in  the  purely  representative  part  of  the  medieval 
Parliament,  the  most  important  for  the  future,  we  see  that 
the  State  requires,  not  merely  representatives  of  individuals, 
acting  at  haphazard,  but  representatives  of  communities, 
which  can  be  held  bound  by  the  promises  of  their  repre- 
sentatives— the  shire,  the  borough,  the  diocese,  the  cathe- 
dral chapter.  These  bodies,  though  not  all  corporations,  in 
the  technical  sense,  were  all  communities,  having  property 
which  could  be  seized,  or,  at  least,  members  who  could  be 
made  responsible.  There  can  be  little  doubt  that  this  was 
the  idea  at  the  back  of  the  legislation  which,  in  England, 

1  "Edda  bare  a  child,  dark  of  skin,  and  they  named  him  Thrall; 
wrinkled  was  the  skin  of  his  hands,  clumsy  his  fingers,  dirty  his 
face,  curved  his  back.  .  .  .  From  him  is  sprung  the  race  of  serfs. 
Amma  bare  a  child.  They  called  him  Karl,  the  red  and  ruddy.  .  .  . 
From  him  is  sprung  the  race  of  farmers.     Modir  bare  a  child. 
They  called  him  Jarl;  yellow  were  his  locks,  clear  his  cheeks, 
shining  his  eyes.  .  .  .  He  was  wise  in  runes,  he  learned  to  under- 
stand the  cries  of  "birds."  (It  will  be  noted  that  the  scheme  of 
the  Edda  is  even  more  archaic  than  that  of  the  medieval  Parlia- 
ments.   There  is  no  "townsman";  and  noble  and  priest  are  one.) 

2  Even   in   England,  the  copy-holder,   or   serf-tenant,  had   no 
vote  until  1832. 


POLITICAL    REPRESENTATION    193 

at  the  end  of  the  fifteenth  century,  fixed  the  medieval 
franchise,  for  many  centuries,  in  the  freeholders  of  the  shire. 
But  the  community  of  electors  was  also  local.  The  free- 
holders of  the  shire,  the  clergy  of  the  cathedral  and  the 
diocese,  the  burgesses  of  the  town,  were  near  neighbours. 
They  met  and  talked  together  at  shire-moot  and  market, 
at  chapter-meeting  and  visitation;  they  could  form  a  com- 
mon mind,  or,  as  we  should  say,  a  "local  public  opinion." 
The  importance  of  neighbourhood  in  fostering  the  unity 
of  an  electorate  is,  doubtless,  not  now  so  great  as  it  was  in 
the  days  before  the  art  of  printing,  and  the  improvements 
in  the  means  of  communication,  had  lowered  the  barriers 
of  distance.  But  it  mey  well  be  'doubted,  whether  any 
adequate  substitute  has  yet  been  found  for  the  sight  of 
the  bodily  presence  and  the  exchange  of  the  spoken  word. 

It  would,  however,  be  a  very  superficial  view  of  politics 
to  suppose  that,  in  devising  a  scheme  of  representation 
based  on  the  deep  social  principles  of  class,  common  inter- 
ests, and  neighbourhood,  the  medieval  State  had  solved 
the  difficulties  of  representative  institutions.  For,  as  the 
primitive  notion  of  the  deputy,  as  a  hostage  (p.  185),  seized 
by  the  royal  authority  from  a  reluctant  community,  slowly 
gave  way  before  a  growing  feeling  of  the  desire  to  be 
represented,  and  of  the  honour  of  being  a  representative, 
the  question  arose:  How  is  a  difference  of  opinion  amongst 
the  electors  (as  we  may  now  call  them)  to  be  settled?  And 
again,  as  the  sullen  acquiescence  of  the  collected  hostages 
grew  into  the  eager  debate  of  the  elected  deputies,  how  was 
the  final  resolution  of  the  assembly  to  be  determined? 

To  a  modern  reader,  these  questions  sound  almost  absurd. 
The  acceptance  of  a  MAJORITY  vote  seems  to  him  the  obvi- 
ous and  inevitable  manner.  And  yet  it  is  quite  certain,  that 
we  can  easily  go  back  to  a  time  when  this  principle  was 
unrecognised  in  social  affairs.  In  the  older  institutions  of 
politics,  there  is  no  trace  of  it.  Unanimity,  not  a  mere 
majority,  is  required  to  express  the  voice  of  the  community. 
This  is  the  rule  with  the  oath  of  the  kindred  (p.  82),  the 
village  community,  and  the  jury;  possibly  also  with  the 


194  THE   STATE   AND   THE   NATION 

craft  gild.  Probably  there  were  more  or  less  efficacious 
ways  of  suppressing  a  minority  who  were  felt  to  be  merely 
"pig-headed";  but,  as  a  rule,  if  there  were  no  unanimity, 
nothing  could  be  done — a  fact  which  largely  accounts 
for  the  immobility  of  medieval  agriculture  and  craftsman- 
ship. For  a  minority,  honestly  convinced  of  its  right,  to 
have  given  way  to  a  majority,  merely  because  it  was  a 
majority,  would  have  been  thought  cowardly.  The  proper 
thing  to  do,  if  feeling  was  strong,  was  to  fight  it  out.  Most 
discussions  in  the  Middle  Ages  ended  in  a  fight,  or,  at  least, 
in  a  brawl.  There  are  countries  of  which  this  might  still  be 
said. 1 

Though  the  history  of  the  majority  principle  is  unhappily 
obscure,  there  is  good  reason  to  believe  that  England,  in 
this  as  in  so  many  political  reforms,  led  the  way.  Un- 
fortunately, the  early  records  of  her  Parliaments  make  no 
reference  to  the  way  in  which  differences  of  opinion  were 
decided,  either  at  the  polls  or  in  the  Houses.  But  this 
very  silence  is  significant;  not  less  significant  are  certain 
traditional  usages  and  tricks  of  speech  which  still  survive. 
When  "the  question  is  put"  in  the  House,  the  first  answer 
is  a  shout;  and  it  is  the  duty  of  the  Speaker  to  express  his 
view  that  the  "Ayes  have  it,"  or  conversely.  If  his  view  is 
challenged,  the  cry  is  "Divide,  Divide" — that  is,  draw 
up  the  sides  in  order,  one  against  the  other.  This  can 
hardly  be  aught  else  than  an  appeal  to  force,  threatened 
or  actual;  while  the  phrase  "carrying  an  election,"  or, 
more  fully,  "carrying  a  candidate  at  an  election,"  was  ob- 
viously, in  its  origin,  an  achievement  of  physical  force. 

But,  clearly,  there  are  objections  to  the  exercise  of  phys- 
ical force,  as  an  habitual  arbiter  in  debate;  and,  danger- 
ous as  are  all  a  priori  arguments,  it  is  hardly  too  much 
to  say,  that  its  inconveniences  must  have  grown  increas- 
ingly obvious,  as  meetings  of  Parliament  and  elections 

1  Of  course  it  is  not  pretended  that  the  recognition  of  the 
majority  vote  was  not  known  to  the  civilised  communities  of  the 
older  world.  But  it  is  noteworthy,  that  the  word  "vote"  (yotum) 
originally  meant  only  a  "vow." 


POLITICAL   REPRESENTATION    195 

became  more  frequent.  At  some  period  or  another  in  its 
early  history,  the  English  Parliament  definitely  adopted, 
for  its  own  debates,  the  principle  of  submitting  to  the  vote 
of  the  majority — i.e.  of  counting  heads  instead  of  breaking 
them;  *  and  it  imposed  this  principle,  not  with  complete 
success  at  first,  upon  its  electors. 2  The  change  was  momen- 
tous; and  it  revolutionised  the  development,  not  merely  of 
politics,  but  of  economic  life.  But  a  grasp  of  its  character 
will  enable  us  to  avoid  a  slavish  worship  of  the  majority 
principle  as  an  expression  of  ultimate  wisdom  or  truth. 
Acceptance  of  the  majority  vote  is  not  a  means  of  arriving 
at  the  truth ;  it  is  simply  a  practical  means  of  getting  things 
done  without  bloodshed.  It  is,  of  course,  an  appeal  to 
physical  force,  or  presumed  physical  force,  after  all  appeals 
to  reason  have  been  in  vain;  but  the  fate  of  those  assem- 
blies, such  as  the  Cortes  of  Aragon  and  the  Estates  of 
Poland,  which  refused  to  adopt  it,  would  seem  to  justify  the 
prudence  of  the  English  Parliament.  And,  moreover,  the 
exercise  of  self-restraint  which  it  involved  was  a  priceless 
gain,  not  merely  in  political,  but  in  social  life,  by  the 
example  which  it  set.  It  is  significant,  that  the  provoca- 
tive practice  of  the  wearing  of  swords  by  civilians  was 
abandoned  in  Parliament  long  before  it  was  discarded 
outside. 

No  less  remarkable,  as  a  contribution  towards  civilisa- 
tion, is  the  development  of  that  PARTY  SYSTEM,  which  has 
had  so  great  a  share  in  the  success  of  English  representative 
institutions.  The  party  system  is,  doubtless,  in  origin, 
dangerously  akin  to  the  old  discredited  practices  of  the 
blood  fev.d  and  private  war  (pp.  80,  140).  But  it  differs 
from  it  in  being,  as  Burke  showed,  an  appeal  to  principle 

*It  is  probable  that  the  assembling  of  Parliament  within  the 
limits  of  the  royal  palace  had  a  good  deal  to  do  with  the  accept- 
ance of  the  principle ;  for  we  remember  (p.  167)  that  a  breach  of 
the  King's  Peace,  especially  if  "within  the  verge,"  was  a  heinous 
offence. 

"The  principle  is  clear  in  the  statute  of  1430,  which  regulated 
the  shire  elections  ("A  voice  equivalent").  It  is  implied  in  the 
earlier  statute  of  1407. 


196  THE   STATE   AND    THE   NATION 

rather  than  to  force;  and  the  true  distinction  between 
party  and  faction  lies  just  in  this  point.  A  party,  like  a 
faction,  gathers  round  a  leader,  and  opposes  a  rival  party, 
as  a  faction  opposes  a  rival  faction.  But,  whereas  the  aims 
of  a  faction  are  personal,  the  aims  of  a  party  are  public; 
and  all  the  severe  criticism,  often  only  too  well  justified, 
directed  against  specific  examples  of  partisanship,  really 
amount  to  this,  that  the  party  acts  as  a  faction,  i.e.  that  it 
aims  at  securing  benefits  for  its  members,  rather  than  at 
carrying  out  a  programme  of  public  policy.  And,  admit- 
tedly, the  wholesome  working  of  the  party  system  demands 
of  its  workers  a  degree  of  self-restraint  which  is  difficult 
for  average  human  nature  to  achieve,  and  the  absence  of 
which  has,  in  many  cases,  proved  disastrous  to  the  develop- 
ment of  sound  political  institutions.  Nevertheless,  it  is 
difficult  to  see  how  representative  institutions  could  have 
been  successfully  developed  without  a  resort  to  it,  or  to 
doubt  that,  to  a  wise  and  moderate  use  of  it,  England  owes 
her  pre-eminent  place  in  the  history  of  representative  gov- 
ernment. For,  though  it  is  possible  to  conceive  of  a  purely 
tax-granting  body  acting  without  the  guidance  of  party 
organisation,  it  is  difficult  to  see  how  either  legislation  or 
policy  can  be  produced  by  a  representative  body,  without 
some  sach  machinery  for  disseminating  ideas  among  its 
members  and  electors,  for  putting  them  into  practical  shape, 
for  ensuring  systematic  criticism  of  concrete  proposals,  and 
for  stimulating  and  keeping  alive  that  intelligent  interest  in 
public  affairs,  which  is  the  very  lifeblood  of  successful  rep- 
resentative institutions.  These  are  the  no  mean  services 
which  the  party  system  has  rendered  to  the  progress  of 
political  development. 

As  for  the  representative  principle  itself,  it  has  had,  as 
is  well  known,  a  curious  history.  For,  after  its  widespread 
growth  in  the  twelfth  and  thirteenth  centuries,  it  had  dis- 
appeared, almost  entirely,  in  Western  Europe,  by  the 
seventeenth,  save  only  in  the  British  Islands.  There,  on 
the  other  hand,  just  when  it  had  disappeared  elsewhere,  it 
achieved  its  greatest  victory,  in  bringing  beneath  its  sway, 


POLITICAL   REPRESENTATION    197 

not  merely  finance  and  legislation,  but  the  daily  conduct, 
or  administrative  policy,  of  the  Government.  How  this  end 
was  achieved,  almost  unconsciously,  by  the  evolution  of 
the  Cabinet  System,  based  on  the  earlier  party  organisa- 
tion of  the  Civil  War  and  the  Revolution,  is  too  special  a 
subject  to  be  described  in  detail  here. *  But  it  is  material 
to  notice,  that  the  success  of  representative  government 
in  Great  Britain  was  undoubtedly  responsible  for  its  adop- 
tion and  rapid  development  in  the  New  World  of  America, 
which,  colonised  largely  from  the  British  Islands,  was,  just 
at  that  very  time,  awaking  to  vigorous  political  life.  Only, 
it  should  be  pointed  out  that,  owing  to  the  fact  that 
the  founding  of  the  great  American  Republic  was  coincident 
with,  if  not  actually  caused  by,  a  temporary  failure  of  the 
Cabinet  System  in  Great  Britain,  that  system  was  not,  to 
the  regret  of  some,  at  least,  of  its  ablest  statesmen,  adopted 
by  the  new  Constitution  of  the  Federal  States.  And  when, 
with  the  bursting  storm  of  the  French  Revolution,  the 
representative  principle  reappeared  in  Continental  Europe, 
not  as  the  outcome  of  slow  historical  development,  but  as 
the  philosophical  panacea  for  the  evils  of  despotism,  and 
an  expression  of  the  "natural  rights"  of  Man,  it  rapidly 
attained  a  theoretical  completeness  which,  as  hinted  above, 
is  perhaps  hardly  justified  by  an  equally  complete  prac- 
tical success.  Still  truer  is  this  view  of  the  nations  of 
South  America,  which,  on  the  break-up  of  the  Spanish 
Empire,  caught  the  reflection  of  the  Rights  of  Man  from 
the  burning  torch  illuminated  by  Rousseau.  On  the  other 
hand,  the  steady  stream  of  historical  development  carried 
the  representative  principle  once  more  from  Great  Britain 
to  Canada,  Australia,  and  South  Africa,  as  well  as,  in  less 
degree,  to  other  countries  beneath  her  sway,  where  it  has 
taken  root  and  flourished,  for  the  most  part,  in  soil  pre- 
pared by  centuries  of  tradition  to  receive  and  nourish  it. 
How  far  the  undoubted  success  of  representative  institu- 

1  Readers  who  desire  to  see  a  short  analysis  of  the  system,  and 
a  brief  sketch  of  its  history,  may  be  referred  to  the  writer's 
Government  of  the  British  Empire  (Murray,  1918),  ch.  v. 


198  THE   STATE   AND    THE   NATION 

tions  justifies  the  student  of  political  science  in  regarding 
the  representative  principle  as  a  normal  stage  in  the  de- 
velopment of  social  evolution,  is  a  large  question,  which 
can  only  be  briefly  touched  on  here.  Doubts  are  beginning 
to  be  expressed  by  sceptics  as  to  its  ability  to  bear  the 
strain  which  is  being  put  upon  it;  and,  unquestionably, 
the  proposed  extension  of  it  to  such  novel  fields  as  India 
and  China  will  be  watched  with  bated  breath  by  all  who 
have  at  heart  the  future  of  mankind.  Against  this  doubt, 
however,  the  successful  adoption  of  representative  prin- 
ciples by  the  intelligent  nation  of  Japan  would  seem  to 
show  that  these  principles  will  bear  transplanting,  even  to 
Oriental  soil,  provided  that  the  community  which  adopts 
them  has  reached  the  suitable  stage  of  political  develop- 
ment; while  their  proposed  extension  to  the  industrial 
sphere  at  least  argues  continued  faith  in  those  countries 
which  have  long  practised  them. 

But  this  is  essential.  For  the  representative  principle  is 
no  ideal  solution  of  the  problems  of  humanity;  it  is  merely 
an  instrument  of  exceptional  power  and  range,  which  has, 
in  the  writer's  view,  already  achieved  great  results,  and 
may  yet  achieve  more.  Primarily,  it  is  an  appeal  to  reason 
and  faith — to  the  reason  which  is  willing  to  make  sacrifices 
to  secure  benefits,  and  to  the  faith  which  trusts  in  the 
honesty  of  one's  fellows.  Surely,  in  this  appeal,  it  evokes 
the  higher  nature  of  Man,  and  urges  him  towards  the  goal 
of  peace.  On  the  other  hand,  in  its  acceptance  of  the 
majority  vote,  as  settling,  for  practical  purposes,  disputes 
which  reason  has  failed  to  solve,  and  suspicions  which 
faith  refuses  to  allay,  it  recognises  the  inherent  weakness 
of  human  nature,  and  the  fact  that  if,  for  deliberation, 
reason  is  the  only  guide,  it  may  be  needful  to  rely  upon 
force,  when  action  is  essential. 


CHAPTER  XIV 

THE  STATE  AND  LEGISLATION 

BY  "legislation"  we  mean  the  formal  announcement  of 
general  rules  of  conduct  intended  to  be  more  or  less  per- 
manent. We  do  not  usually  apply  the  term  to  rules  of 
conduct  which  spring  up  spontaneously,  such  as  the  rais- 
ing of  the  hat  by  way  of  salutation,  or  the  practice  of 
driving  on  the  left-hand  side  of  the  road.  These  we  call 
"customs";  even  though  the  failure  to  observe  some  of 
them  may  involve  legal  consequences.  Again,  we  do  not 
speak  of  acts,  even  of  the  sovereign  authority,  which 
affect  only  a  very  limited  number  of  people — such  as  a 
Divorce  Act  or  an  Act  settling  a  pension  on  a  distinguished 
public  servant — as  legislation;  though  they  are  produced 
under  much  the  same  forms  as  true  legislation.  Finally,  we 
do  not  call  a  mere  temporary  order,  such  as  the  fixing  of  a 
day  of  public  thanksgiving,  legislation;  or,  if  we  do,  we 
use  a  qualifying  adjective  which  shows  that  we  doubt  the 
strict  appropriateness  of  the  term — as,  for  example, 
"emergency  legislation." 

On  the  other  hand,  at  least  one  well-known  definition  of 
legislation  tends  to  convey  false  ideas.  When  people  define 
legislation  as  the  "command  of  the  State,"  they  are  apt 
to  assume,  first  that  it  is  only  the  command  of  the  State, 
and,  second,  that  it  necessarily  involves  new  rules  of  con- 
duct. Both  these  assumptions  are  false;  and  they  obscure 
the  true  nature  of  legislation,  and,  therewith,  its  proper 
sphere.  In  fact,  legislation  is  a  complex  idea;  and,  as  in 
the  case  of  most  complex  ideas,  there  is  no  better  way  of 
understanding  its  nature  than  by  tracing  how  it  came  into 
existence. 

199 


200  THE   STATE   AND   THE   NATION 

Now  we  have  seen  that,  before  the  establishment  of  the 
State,  the  force  which,  in  the  modern  community,  is  ex- 
pressed in  the  form  of  legislation,  was  expressed  by  CUSTOM. 
It  was  custom  which  provided  the  rules  of  human  conduct 
which  governed  men's  actions.  We  recognise  the  similari- 
ties, but  we  recognise  also  the  differences,  between  these 
two  forms  of  expression.  There  is  the  same  generality,  the 
same  permanence;  but,  in  LEGISLATION,  as  distinct  from 
custom,  we  observe  new  features.  For  legislation  is  enacted 
by  a  definite  authority — a  person  or  a  body  of  persons.  It 
is  also  formally  and  openly  enacted,  without  mystery  and 
without  secrecy  as  to  its  origin.  Moreover,  it  is  almost 
always  accompanied  by  a  precise  statement  of  the  penal- 
ties, or  "sanctions"  (as  a  jurist  would  call  them),  which 
will  follow  upon  a  breach  of  its  provisions.  Very  often,  it 
explains  the  reasons  for  its  provisions.  Whence  come 
these  new  features? 

We  have  also  seen,  that  the  State  is  military  in  its  origin; 
and  personal  authority  is  of  the  essence  of  military  in- 
stitutions. It  may  be  that  patriarchal  society  also,  in  its 
origin,  rested  largely  upon  personal  authority — the  author- 
ity of  the  House  Father.  But  this  was  an  authority  of 
narrow  range,  exercised  over  small  groups  of  people.  And 
it  tended,  as  we  have  seen,  with  the  growth  of  ancestor- 
worship,  and  the  gradual  spinning  of  the  web  of  custom, 
to  substitute  tradition  for  personal  rule.  Military  author- 
ity, on  the  other  hand,  is,  if  it  is  successful,  exercised  over 
large  bodies  of  men;  and  it  remains  directly  personal. 
There  is  no  time,  in  the  heat  of  battle,  to  consult  oracles  or 
doomsmen.  Moreover,  in  the  conduct  of  military  opera- 
tions, new  situations  are  constantly  arising,  which  can 
only  be  successfully  met  by  prompt  and  rapid  decisions, 
immediately  obeyed. 

In  other  words,  every  military  leader  has  to  issue  ORDERS. 
Now  these  orders  are  obviously,  in  some  respects,  like 
laws;  and  the  issuing  of  them  is,  in  some  respects,  like 
legislation.  They  impose  rules  of  conduct;  and  they 
usually  state,  and  always  imply,  penalties  for  disobedi- 


THE   STATE   AND   LEGISLATION    201 

ence.  In  a  sense,  they  may  also  be  said  to  impose  general 
rules  of  conduct;  because  they  often  affect  large  numbers 
of  persons.  But  they  are  usually  of  a  temporary  character, 
and  are  at  least  supposed  to  be  prompted  only  by  military 
necessity.  Even  the  most  autocratic  commander-in-chief 
would  hesitate  about  altering  the  rules  of  inheritance,  or 
denning  the  nature  of  slander,  by  an  Order  of  the  Day. 
Moreover,  and  this  is  very  significant,  these  military  orders 
are  personal  to  the  commander  who  issues  them.  They  do 
not  bind  his  successors.  They  can  be  altered  as  easily  as 
they  are  made. 

This  is  the  point  at  which  the  State  starts  in  its  career 
of  legislation.  All  States  which  have  preserved  anything  of 
their  original  character — even  such  a  highly  developed 
State  as  the  British  Empire — recognise  the  right  of  the 
executive  authority,  the  most  direct  representative  of  the 
original  military  ruler,  to  issue  orders;  though  the  scope 
and  duration  of  these  orders  are  matters  of  keen  contro- 
versy, in  which  State  systems  differ  widely.  The  extreme 
form  of  them  is  known  as  "martial  law,"  or  "the  suspen- 
sion of  constitutional  guarantees,"  or  a  "state  of  siege" — • 
phrases  which  significantly  point  to  their  origin,  and  as- 
sume that,  for  the  time  being,  the  State  has  returned  to 
its  original  form  as  a  body  of  persons  under  military  rule, 
in  which  the  executive  commands  of  the  military  leader 
are  the  sole  authority.  But  such  a  state  of  things  is,  even 
in  the  most  autocratically  governed  of  communities,  re- 
garded as  exceptional.  What  is  the  normal  position? 

If  we  examine  the  legal  records  of  any  of  the  numerous 
States  which  evolved  from  the  break-up  of  the  Roman 
Empire,  we  shall  see  that  their  rulers  obviously  claimed  the 
right  to  issue  ordinances,  orders,  edicts,  or  decrees.  Of 
course  this  was  extremely  natural,  in  view  of  the  fact  that 
the  Frank  Emperors,  both  of  the  earlier  (or  Merovingian) 
and  the  later  (Carolingian)  line,  either  believed,  or  at  least 
pretended  to  believe,  that  they  were  the  lawful  successors 
of  those  mighty  Caesars  who  had  legislated  for  the  world 
from  Rome  and  Constantinople.  It  is  true  that  the  Roman 


202  THE   STATE   AND    THE   NATION 

text-book  writers,  conservative  in  their  language,  handed 
down  the  ancient  tradition  of  republican  freedom  in  their 
well-known  definition  of  law  (lex)  as  "that  which  the 
people  commands  and  ordains."  But  in  reality  that  defini- 
tion had  long  ceased  to  represent  the  facts — had,  even  in 
theory,  been  opposed  by  the  inconsistent  maxim,  that 
"what  pleases  the  Prince  has  the  force  of  law."  And  in 
the  great  Theodosian  Code,  with  which  his  Greek  and 
Italian  scribes  made  him  familiar,  the  Prankish  Emperor 
could  see  the  Imperial  ruler  at  Constantinople  directing 
the  affairs  of  the  world  by  his  "constitutions,"  "decrees," 
"epistles,"  "rescripts,"  and  "edicts." 

It  is  hardly  to  be  supposed,  that  such  an  object  lesson 
would  be  lost  on  an  ambitious  ruler.  The  earlier  Frankish 
conquerors  were  fond  of  adopting  the  Roman  titles  of 
"patrician"  and  "consul";  what  wonder  that  they  sought 
to  adopt  the  powers  implied  in  these  titles,  and  to  exercise 
the  prerogatives  of  the  fallen  Emperors  of  the  West?  In 
fact  we  have,  from  the  later  half  of  the  sixth  century, 
a  series  of  publications,  to  which  the  general  name  of 
"Capitularies"  has  been  given  by  modern  collectors,  of 
very  varying  character,  but  all  resembling  one  another  by 
the  superficial  feature,  that  they  profess  to  emanate  from 
royal  authority.  Of  the  earlier  of  these,  something  will 
hereafter  have  to  be  said;  but  of  the  later,  especially 
those  which  were  issued  during  the  second,  or  Carolingian 
phase  of  the  Frankish  Empire,  we  observe,  particularly, 
that  they  seem  to  be  concerned  with  two  subjects,  namely, 
the  conduct  of  military  and  official  affairs,  and  the  manage- 
ment of  the  royal  domains.  There  is,  practically  speaking, 
nothing  to  correspond  with  them  in  the  equally  ancient 
promulgations  of  the  English  Kings,  though  King  Edgar's 
famous  Ordinance  of  the  Hundred  (p.  168)  may,  perhaps, 
be  said  to  recall  them;  and  we  must,  undoubtedly,  be 
on  our  guard  against  drawing  general  inferences  from  a 
practice  which  was  largely  derived  from  the  peculiar  cir- 
cumstances of  the  Frankish  Empire.  Still,  it  seems  not 
unreasonable  to  assume,  that  the  Capitularies  of  Pepin  III., 


THE   STATE   AND   LEGISLATION    203 

of  Charles  the  Great,  and  of  their  immediate  successors, 
represent  the  view,  that  the  military  founder  of  the  State 
was  admittedly  entitled,  in  view  of  his  military  position,  to 
issue  ORDERS  for  the  control  and  direction  of  his  soldiers 
and  officials,  and  for  the  management  of  the  domains  which 
had  fallen  to  his  share  as  the  result  of  his  conquest. 

The  same  phenomenon  reappeared  in  the  new  kingdoms 
which  were  set  up  on  the  dissolution  of  the  Frankish  Empire. 
Though  there  was,  for  a  long  time,  very  little  of  what  we 
should  call  "general  legislation,"  we  observe  that  the  new 
rulers  issue,  from  time  to  time,  orders  of  a  somewhat  com- 
prehensive character,  such  as  the  "Constitutions,"  or,  as 
they  are  later  called,  Ordnungen,  of  the  German  Kaisers, 
the  Ordonnances,  or,  later,  "edicts"  or  arrets,  of  the  French 
Kings,  the  "Assizes"  of  the  Anglo-Norman  Kings.  Wil- 
liam the  Conqueror,  though  he  solemnly  promised  to  pre- 
serve the  English  "law  of  the  land,"  issued  his  famous 
Ordinance  of  the  Curfew,  his  Ordinance  separating  the  lay 
and  spiritual  courts,  and  other  important  decrees.  His 
grandson,  Henry  II.,  by  his  famous  "Assizes"  of  Clarendon 
and  Northampton,  regulated,  as  we  have  seen  (pp.  172-73), 
his  new  criminal  procedure,  by  his  Assize  of  Arms,  the 
levy  of  the  national  militia,  and,  by  his  Assize  of  Wood- 
stock, the  management  of  the  royal  forests.  None  of  these, 
it  is  to  be  observed,  were  very  intimately  concerned  with  the 
daily  affairs  of  ordinary  life;  and,  though  there  was,  un- 
doubtedly, a  feeling  that,  when  the  King's  Orders  imposed 
any  general  burdens,  they  should  be  discussed  in  an  as- 
sembly of  the  "barons,"  or  military  tenants  of  the  King, 
just  as  there  had  been  a  tradition  in  the  old  Frankish 
Empire  that  such  promulgations  should  at  least  be  accepted 
by  a  Champs  de  Mars,  or  gathering  of  the  direct  military 
vassals,  yet,  in  fact,  these  ordinances  were  usually  the  work 
of  the  ruler  and  his  intimate  counsellors.  And,  in  fact  also, 
such  manifestations  as  there  were,  in  favour  of  anything  that 
could  be  called  a  "popular"  claim  to  share  in  the  making  of 
royal  ordinances,  did  not,  so  long  as  these  ordinances  kept 
within  the  limits  above  indicated,  amount  to  very  much. 


204  THE   STATE  AND   THE  NATION 

But,  long  before  the  development  of  the  royal  ordinance 
had  reached  the  point  we  have  described,  another,  and 
equally  important,  movement  had  made  itself  felt.  All  over 
Western  Europe,  from  the  earliest  days  of  the  barbarian 
invasions,  there  had  been  attempts  on  the  part  of  the 
invaders  and  conquerors  to  record  the  CUSTOMS  of  their 
subjects.  These  attempts  fall  into  two  well-marked  groups, 
an  earlier  and  a  later. 

To  the  earlier  group  belong  those  tribal  customs  to  which 
we  give  the  name  of  Folk-Laws.  As  this  name  implies, 
they  are  not  so  much  local  as  personal  usages.  They  date 
from  a  time  when  the  map  of  Europe  was  still  a  moving 
maze  of  shifting  groups,  each  clinging  to  its  ancestral 
customs,  and,  as  we  have  seen  (p.  83),  refusing  to  be 
governed,  at  least  in  private  affairs,  by  any  others.  We  see 
plainly,  in  the  Barbarian  Laws  of  the  Frank  Empire,  the 
difficulties  which  arose  from  the  admitted  principle,  that  a 
"Roman"  (i.e.  a  man  who,  or  whose  ancestors,  was  a  subject 
of  the  fallen  Roman  Empire)  shall  be  judged  by  Roman 
Law,  a  Burgundian  by  Burgundian  Law,  a  Salian  Frank  by 
Salic  Law,  and  so  on.  In  England,  the  problem  was  less  dif- 
ficult; because  the  English  invaders  did  not,  for  the  most 
part,  settle  down  as  over-lords  of  the  native  population,  but 
drove  them  ruthlessly  out,  and  appropriated,  group  by 
group,  little  patches  of  territory,  to  which  they  ever  after- 
wards clung  with  desperate  tenacity.  Thus  the  old  customs 
of  the  Kentish  men  rapidly  became  the  Custom  of  Kent, 
the  customs  of  the  Mercians  the  Custom  of  Mercia,  and  so 
on.  And  thus  the  Old  English  Laws,  though  some  of  them 
are  quite  as  old  as  the  Continental  Leges  Barbarorum,  really 
form  the  connecting  link  between  the  earlier  and  the  later 
of  the  two  groups  of  laws  which  we  are  now  considering. 

The  later  group  of  "custumals"  is  distinguished  from 
the  older,  not  merely  by  the  fact  that  its  productions  were, 
as  we  have  said,  local,  rather  than  personal,  in  character, 
but  by  the  additional  fact,  that  the  compilers  of  these 
productions  were  not  Emperors  or  Kings,  but  unofficial, 
unauthoritative,  and,  in  many  cases,  anonymous  writers. 


THE   STATE   AND   LEGISLATION    205 

fhe  first  of  these  differences  is  readily  accounted  for  by  the 
fact  that,  by  the  time  at  which  this  later  group  appeared, 
the  inhabitants  of  Europe  had  settled  down,  more  or  less 
peacefully,  to  permanent  occupation  of  the  soil,  and  had 
rebuilt  the  cities  sacked  in  the  barbarian  invasions,  or 
built  new  ones.  But  the  latter  fact  is  mysterious,  and  has 
never  been  satisfactorily  explained.  It  may  be  called  the 
Period  of  the  Text-Books.  For  reasons  which  we  shall 
shortly  have  to  notice,  its  importance  in  England  was  not 
very  great;  though  the  Quadripartitus  and  the  so-called 
Laws  of  Henry  the  First1  are  interesting.  But,  for  centuries, 
the  familiar  and  unquestioned  "custumals"  of  Germany 
were  the  Saxon  Mirror  ("Sachsenspiegel"),  the  Swabian 
Mirror  ("Schwabenspiegel"),  and  the  German  Mirror 
("Deutschenspiegel") ;  of  France,  the  Coutumiers  of  Nor- 
mandy, Toulouse,  Brittany,  and  Poitou;  of  Sweden,  the 
anonymous  West  Gothic  Law  or  Uplands  Law;  of  Iceland, 
the  Grey  Goose  Book  (Gragas),  and  so  on.  Most  curious 
of  all,  there  were  attempts  to  promulgate  a  sort  of  general 
feudal  custom,  in  spite  of  the  claim  of  each  fief  to  enjoy  its 
own  privileges;  and  the  so-called  Books  of  Feuds,  tacked 
on,  by  a  bold  effort  of  imagination,  to  the  Code,  of  Justinian, 
and  the  Assizes  of  Jerusalem,  that  is,  of  the  Latin  Kingdom 
set  up  by  the  Crusaders  in  Jerusalem  in  the  twelfth  century, 
are  amongst  the  curiosities  of  this  period. 

But  the  feature  of  vital  importance  which  is  common  to 
all  these  productions  is,  that  they  do  not  profess  to  be 
created,  or  invented,  by  the  persons  who  drew  them  up. 
A  private  and  anonymous  author  could,  of  course,  have  no 
claim  upon  the  obedience  of  Germans  or  Frenchmen;  but 
the  feature  is  equally  clear  in  the  members  of  the  earlier 
group,  avowedly  issued  under  royal  auspices.  The  Emperors 
and  Kings  who  drew  up  the  Kentish,  Salian,  Bavarian,  and 
Burgundian  customs,  professed  only  to  "record,"  "fix," 
"settle,"  "ascertain,"  or  "establish"  these  customs.  We 
may  suspect  that  they  did  a  certain  amount  of  editing 

1  So  called  because  the  work  commenced  with  Henry  I.'s  coro- 
nation charter. 


206  THE   STATE   AND   THE   NATION 

— that  particularly  archaic  customs,  especially  those 
abhorrent  to  their  Christian  counsellors,  were  quietly 
dropped  out;  whilst  it  is  a  matter  for  regret  that  the 
custumals,  as  was,  after  all,  natural,  seem  to  devote  them- 
selves mainly  to  disputed  points,  rather  than  to  universally 
admitted  rules.  Still,  the  great  point  is,  that  the  State, 
though  it  had  taken  the  important  steps  of  ascertaining 
and  publishing  the  customs  of  its  subjects,  as  yet  made  no 
claim  to  alter  or  create  them. 

In  England,  as  has  been  hinted,  the  State  had,  by  this 
time,  taken  a  bolder  step.  Despite  a  faint  legend  to  the 
contrary,  it  may  very  well  be  doubted  whether  the  Anglo- 
Norman  Kings  ever  made  any  attempt  to  collect  and 
formulate  that  "law  of  the  land"  which  they  promised  in 
their  charters  to  observe.  For  one  very  good  reason,  there 
was  no  such  thing  in  existence;  and  an  enquiry  after  it 
would  only  have  revealed,  as  did  the  later  enquiries  of  the 
French  Kings,  a  bewildering  variety  of  local  customs.  The 
Anglo-Norman  policy  was  much  subtler  and  more  effective. 
As  we  have  seen  (pp.  175-79),  its  framers,  in  the  twelfth  and 
thirteenth  centuries,  succeeded  in  drawing  to  their  courts, 
by  their  systems  of  writ  and  jury,  the  great  bulk  of  that 
business  which,  in  Continental  Europe,  was  still  being  trans- 
acted in  other  tribunals.  In  dealing  with  this  business,  the 
State's  judges  inevitably  learnt  a  great  deal  of  English 
customs;  and,  by  a  process  never  yet  satisfactorily  ex- 
plained, they  succeeded  in  welding  them  into  one  COMMON 
LAW.  They  were  even  more  profuse  than  the  royal  compilers 
of  custumals  in  their  assertions  that  they  only  "interpreted," 
and  did  not  "make,"  this  "common  law  or  custom  of  the 
realm."  But  by  their  masterly  policy  of  confining  juries  to 
questions  of  fact, x  whilst  they  themselves  laid  down  the 
law,  by  a  crafty  framing  of  writs  so  as  to  assume  the  exist- 

1  It  is  not  so  well  known  as  it  might  be,  that  the  earliest  trial-, 
jury,  in  the  "Grand  Assize"  (p.  177),  was  directed  to  answer  a 
question  of  law.  If  this  model  had  been  followed,  there  would 
have  been  no  "common  law"  in  the  thirteenth  century;  because 
each  jury  would  have  followed  its  own  local  customs. 


THE   STATE   AND   LEGISLATION    207 

ence  of  legal  rules  of  which  they  approved,  they  did,  in  fact, 
succeed,  in  little  more  than  a  century,  in  formulating  a  LAW 
OF  THE  LAND,  hundreds  of  years  before  the  State  in  France 
and  Germany,  with  its  feebler  judicial  systems  (pp.  180-82), 
had  been  able  to  do  so.  For  even  the  powerful  French 
monarchy  of  the  fifteenth  and  sixteenth  centuries,  though 
it  took  elaborate  pains  to  draw  up  and  record  the  "customs" 
of  its  various  provinces,  by  that  interesting  process  known 
as  the  enquete  par  tourbe  ("enquiry  by  the  crowd"),  did  not 
succeed  in  harmonising  and  unifying  these  customs.  On 
the  contrary,  the  very  fact  that  they  had  been  so  carefully 
recorded  and  officially  issued, x  seemed  to  give  them  new 
life;  and  even  the  great  French  jurists  of  the  seventeenth 
and  eighteenth  centuries,  though  they  did  their  best,  did 
not  succeed  in  producing  a  common  law  of  France.  That 
result  was  not  achieved  until  the  furnace  of  the  French 
Revolution  had  welded  the  customs  into  one,  and  cleared 
the  way  for  that  great  Civil  Code  which  is  the  proudest 
title  of  Bonaparte  to  enduring  fame.  In  Germany,  the 
paralysis  of  the  Empire  which  followed  on  the  reign  of 
Frederick  II.,  left  such  attempts  at  law-enacting  as  there 
were  to  the  rulers  of  the  great  fiefs;  though  there  was  a  real 
attempt,  in  the  fifteenth  and  sixteenth  centuries,  to  provide 
a  true  Imperial  criminal  and  police  law  in  connection  with 
the  new  Imperial  Court  of  Appeal  (p.  181).  Accordingly, 
we  find  in  Germany  a  number  of  provincial  "land  laws" 
(Landrechte)  drawn  up  about  this  time,  such  as  the  Aus- 
trian Land  Law  of  1298,  the  Bavarian  of  1346,  and  the 
Wiirtemberg  of  1555.  There  was  also,  in  the  Germany  of 
the  later  Middle  Ages,  a  good  deal  of  recording  of  Town 
Laws,  such  as  the  Hamburg  and  Augsburg  Town  Laws  of  the 
thirteenth  century,  the  Bremen  and  Munich  of  the  four- 
teenth, and  so  on.  But  these,  and  later  compilations,  only 
served  to  emphasise  local  differences;  and,  in  truth,  it  was 
not  until  the  close  of  the  nineteeth  century,  that  united 

1  These  official  custumals  of  the  fifteenth  and  sixteenth  cen- 
turies must  be  distinguished  from  the  older  private  compilations 
alluded  to  on  p.  205. 


208  THE   STATE   AND   THE   NATION 

Germany  achieved  a  common  law  in  the  Civil  Code  of  1900. 
The  only  successes  in  the  production  of  truly  national  laws 
which,  in  the  thirteenth  and  fourteenth  centuries,  can  com- 
pare with  that  achieved  by  England,  took  place  in  Scandi- 
navia, where,  in  Norway,  Magnus  Lagabotir's  Land  Law 
(1274),  and,  in  Sweden,  Magnus  Eriksson's  Land  Law  of 
1347,  may  fairly  be  described  as  national  codes;  though 
they  obviously  left  a  good  deal  of  independence  to  the  local 
customs  of  the  great  commercial  port  towns,  such  as  Wisby 
and  Copenhagen. 

But  now  we  have  to  notice  another  important  fact. 
Hitherto,  as  we  have  seen,  the  part  played  by  the  State, 
at  least  in  theory,  in  the  production  of  private,  or  civil 
laws,  had  been  that  of  recorder  and  publisher  only,  save 
only  in  England,  where  it  had  also  undertaken  to  enforce 
them.  On  the  Continent,  the  process  of  record  and  publica- 
tion had  been  openly  performed  by  deliberate  and  formal 
enquiries,  such  as  the  French  enquetes  par  tourbe  (p.  207). 
In  England,  on  the  other  hand,  the  process  had  been  subtler 
and  more  complete,  viz.  by  the  unifying  directions  given  by 
the  State's  judges,  on  circuit  and  at  Westminster,  to  the 
local  juries.  In  other  words,  the  State  in  England  had  not 
merely  recorded  the  local  customs,  but  had  unified  them, 
and  then  enforced  the  "common  law"  produced  by  this 
union.  Consequently,  the  record  of  the  common  law  is  to 
be  found  in  England,  not  in  "custumals,"  or  in  "land 
laws,"  but  in  the  Register  of  Writs  and  the  Plea  Rolls  of 
the  King's  Courts. 

This  difference,  seemingly  so  superficial,  has  left  a  deep 
mark  on  English  law,  and  given  it  more  than  one  of  its 
most  striking  peculiarities.  It  has  made  it  a  tower  of 
strength  against  the  arbitrary  encroachments  of  that  very 
State  which  produced  it.  More  than  any  other  cause,  it 
has  led  to  the  establishment  of  that  Rule  of  Law  (p.  167), 
which  refuses  to  admit  that  the  officials  of  the  State,  even 
though  they  act  in  the  King's  name,  are  entitled  to  any 
peculiar  privilege  which  exempts  them  from  liability  for 
breaches  of  the  law.  This  striking  peculiarity  of  English 


THE   STATE   AND   LEGISLATION    209 

law  and  the  systems  derived  from  it,  which  was  the  topic 
of  unstinted  admiration  by  Continental  observers,  such  as 
Montesquieu  and  Voltaire,  in  the  seventeenth  and  eight- 
eenth centuries,  is  unquestionably  due  to  the  formal  and 
official  character  of  the  records  of  the  English  common  law. } 
It  was  impossible  for  the  State  official  to  deny  the  existence ; 
of  rights  which  were  solemnly  embalmed  in  the  State's  own ' 
Register  of  Writs,  each  bearing  the  King's  Great  Seal,  or  in 
the  Plea  Rolls  of  the  King's  own  Courts.  And  when,  in 
imitation  of  Continental  methods,  the  King's  officials,  in 
later  days,  attempted  to  argue,  that  an  implied  exception 
from  these  strict  rules  must  be  raised  in  favour  of  officials 
acting  in  the  interests  of  the  State,  the  answer  given  by 
the  King's  own  tribunals,  through  the  mouth  of  a  famous 
Chief  Justice,  was,  that  "the  common  law  does  not  under- 
stand that  kind  of  reasoning."  If,  on  the  other  hand,  the 
way  in  which  the  English  common  law  was  drawn  up 
made  it  somewhat  narrow,  inelastic,  hard  to  bring  into 
touch  with  changing  conditions, l  we  must  never  forget 
that  it  has  guaranteed  to  Englishmen,  better  than  charters 
and  formal  "Constitutions,"  their  freedom  from  lettres  de 
cachet,  arbitrary  arrests  and  searches,  irregular  taxation, 
forced  services,  and  similar  devices  of  an  executive  author- 
ity unrestrained  by  the  bonds  of  an  equal  law.  No  one  of 
the  many  peculiar  features  of  English  political  develop- 
ment has  excited  more  universal  admiration,  or  done 
more  to  make  England  the  guiding  star  of  political 
freedom. 

But,  of  course,  we  must  not  forget  that,  very  soon  after 
the  State  in  England  had  produced  the  English  common 
law,  it  also  developed  the  English  Parliament.  It  was 
hardly  possible  that  this  great  institution  should  long  re- 
main without  influence  on  the  common  law;  but  the  precise 
nature  of  that  influence  is  often  misunderstood. 

1  One  of  the  best  proofs  of  this  defect  is  the  appearance  of  the 
famous  Court  of  Chancery,  in  the  early  fifteenth  century,  to  deal 
with  grievances  for  which  there  was  no  remedy  "at  the  common 
law." 


210  THE   STATE   AND   THE   NATION 

It  has  been  insisted,  in  the  preceding  chapter,  which 
attempted  to  give  some  account  of  the  origin  of  the  English 
Parliament,  that,  like  its  Continental  relatives,  it  was  no 
spontaneous  uprising  of  popular  desire  to  take  part  in 
politics,  but  an  unwilling  response  to  demands  for  money, 
that  brought  this  new  institution  into  existence.  Yet,  as 
has  also  been  pointed  out,  the  natural  result  of  the  feeling 
of  national  unity  produced  by  the  creation  of  Parliaments 
was  everywhere  to  stimulate  such  a  desire;  and  the  pre- 
ceding chapter  has  also  (pp.  189-91)  endeavoured  to  point 
out  why  this  desire  succeeded  in  realising  itself  in  England, 
while  on  the  Continent  of  Europe,  it  gradually  died  away. 
We  have  now  to  see  how  this  desire  led  to  the  appearance 
of  State  LEGISLATION. 

One  of  the  most  conspicuous  features  of  early  State  life 
is  the  presentation  of  PETITIONS  to  the  ruling  power.  We 
need  not  seek  far  for  the  explanation  of  such  a  practice. 
The  military  ruler  who  has  set  up  the  State  is  so  conspicu- 
ously the  most  powerful  individual  in  the  land,  that  it  is 
the  natural  instinct  of  every  one  with  a  grievance  to  re- 
dress, or  a  favour  to  seek,  to  approach  him  for  help.  No 
ruler  with  any  knowledge  of  human  nature  openly  dis- 
courages such  approaches,  however  much  he  may  be  bored 
by  them;  for  every  such  ruler  is  aware  that  nothing  is 
more  dangerous  than  a  sense  of  stifled  wrongs,  while  he 
knows,  on  the  other  hand,  that  a  few  gracious  words  of 
sympathy,  even  if  they  are  unaccompanied  by  practical 
help,  may  convert  discontent  into  loyalty.  Accordingly,  it 
is  a  real  object  with  able  monarchs,  especially  of  the  primi- 
tive type,  to  prevent  access  to  the  throne  being  blocked 
by  corrupt  or  harsh  officials;  and  many  of  the  most  pic- 
turesque stories  of  benevolent  Kings  and  Sultans  are  con- 
cerned with  these  efforts. 

Now  there  is  plenty  of  evidence  to  show  that,  even  be- 
fore the  appearance  of  Parliaments,  the  rulers  of  European 
States  had  been  in  the  habit  of  receiving  countless 
petitions  of  all  kinds,  and  had  even  developed  a  regular 
machinery  for  dealing  with  them.  But  the  establishment  of 


THE   STATE   AND   LEGISLATION    211 

Parliaments,  Estates,  and  Diets  (pp.  188-89)  greatly  stimu- 
lated the  practice,  and  lent  additional  weight  to  the  pray- 
ers of  the  petitioners.  For,  while  it  was  comparatively 
easy,  though,  as  has  been  said,  not  entirely  safe,  to  dis- 
regard the  petition  of  a  private  individual,  it  was  by  no 
means  so  easy  to  ignore  a  petition  presented  by  a  Parlia- 
ment from  which  the  person  petitioned  was  demanding  a 
grant  of  money.  Nor,  on  the  other  hand,  is  it  difficult  to 
see  why  the  individual  petitioner  should  entrust  his  petition 
to  the  knight  of  his  shire  or  the  deputy  of  his  borough,  who 
was  "going  to  London  to  see  the  King";  for  he  would 
naturally  suppose  that,  while  he  himself  would  be  saved 
the  expense  and  labour  of  the  journey,  his  "representa- 
tive" would  be  a  better  advocate  of  his  cause  than  he  him- 
self would  be. 

This  is,  in  effect,  exactly  what  happened.  One  of  the 
very  first  steps  taken  at  the  assembling  of  a  Parliament 
at  Westminster  or  a  States-General  at  Rheims  or  Paris, 
from  the  earliest  times,  was  the  "trying,"  or  examination, 
of  the  petitions,  or,  as  the  French  called  them,  cahiers, 
which  the  deputies  brought  from  their  constituents. 
Many  of  them  were  still  of  a  purely  personal  nature,  being 
very  frequently  complaints  of  abuses  by  State  officials. 
These  were  distributed  among  the  various  officials  con- 
cerned, with  an  intimation  that,  unless  the  grievance  was 
remedied,  more  would  be  heard  of  it.  Others,  seemingly 
susceptible  of  a  remedy  by  ordinary  law,  were  referred  for 
treatment  to  the  ordinary  Courts.  Others,  again,  were  for 
remedies  of  "grace,"  which  could  not  be  claimed  as  of 
right,  or,  perhaps  more  often,  could  not  be  enforced  in  the 
ordinary  Courts  because  of  the  powerful  influence  wielded 
by  the  wrong-doers;  and  these  it  was  the  practice  to  refer 
to  certain  high  officials,  such  as  the  Treasurer  or  the 
Chancellor,  to  be  dealt  with  "according  to  equity  and 
good  conscience."  This  class  is  specially  interesting, 
because  it  gave  rise  in  England  to  the  equitable  jurisdic- 
tion of  the  Court  of  Chancery  and  the  Court  of  Exchequer, 
to  supplement  the  deficiencies  of  the  common  law,  and  in 


212   THE    STATE   AND    THE   NATION 

Continental  countries  to  similar  tribunals.  Where  these 
steps  were  deemed  insufficient,  Parliament  might,  if  satis- 
fied of  its  justice,  adopt  the  petition  as  its  own,  and  pray 
the  Crown  to  grant  its  prayer.  This  is  the  origin  of  what 
is  now  called  "Private  Bill  legislation." 

But  the  most  interesting  class  of  petitions  adopted  by 
the  early  Parliaments  were  those  complaining  of  a  breach 
of  the  "good  and  lawful  customs  of  the  realm."  Of  course, 
where  it  appeared  that  these  were  based  on  occasional  or 
individual  offences,  the  petitioner  would,  naturally,  be 
referred  to  the  ordinary  Law  Courts.  But,  if  they  dis- 
closed an  habitual  course  of  illegality,  especially  by  the 
royal  officials,  such  as  "purveyance"  (or  irregular  seizure 
of  provisions  and  carts  for  the  royal  use),  unauthorised 
levies  of  taxation,  even  unreasonable  interpretation  of 
common-law  rules  by  the  judges,  then  Parliament  would 
proceed  to  petition  the  King  to  issue  a  general  Order 
against  such  practices,  and  would  hold  up  supplies  until  a 
favourable  answer  was  furnished.  This  was,  as  all  students 
of  English  history  know,  the  great  weapon  with  which  the 
Parliament  won  its  chief  victories,  and,  ultimately,  estab- 
lished its  right  to  share  with  the  Crown  the  whole  powers  of 
government.  And  when,  after  an  attempt  of  the  royal 
officials  to  blunt  its  edge,  by  framing  the  promised  Order  in 
such  a  way  as  to  leave  loopholes  for  future  evasion,  Parlia- 
ment gave  it  a  still  keener  sharpness,  by  submitting  its 
petitions  in  the  form  of  BILLS,  x  which  merely  required  the 
assent  of  the  Crown  to  assume  formal  legal  shape,  the  ACT 
OF  PARLIAMENT — the  public,  unquestionable  supreme  ex- 
pression of  the  law — made  its  appearance.  But  it  should 
be  particularly  observed  that,  in  its  origin,  it  did  not,  any 
more  than  the  judges'  decisions,  profess  to  make  law,  but 
only  to  declare,  proclaim,  and  enforce  law  already  exist- 
ing. Indeed,  for  nearly  two  hundred  years  after  the  com- 

1  This  right,  which  was  definitely  established  by  the  English 
Parliament  of  1414,  though  valuable  in  itself,  has,  undoubtedly, 
had  the  effect  of  laying  undue  stress  on  the  very  words  of  an 
Act  of  Parliament. 


THE   STATE   AND   LEGISLATION    213 

mencement  of  Parliamentary  legislation,  the  Law  Courts 
expressed  grave  doubts  as  to  the  power  of  Parliament  to 
enact  anything  contrary  to  the  common  law. 

But  now,  to  complete  our  story,  we  must  turn  back  for 
a  moment  to  the  power  of  issuing  Orders  (Ordonnances , 
Ordnungen)  which,  as  we  have  seen  (pp.  200-3),  was 
claimed  by  the  State  as  part  of  its  inherent  military  author- 
ity. These,  on  the  Continent  of  Europe,  continued  to  multi- 
ply, and,  in  some  cases,  to  assume  a  true  legislative  form, 
such  as  the  Rekhsabschiede  of  Germany,  and  the  greater 
French  Ordonnances  of  the  late  sixteenth  century.  But  the 
marked  failure  of  the  representative  States-General  and 
Diets  of  the  Continent  to  make  good  their  claims,  or  even  to 
maintain  their  existence,  left  their  countries  without  satisfac- 
tory organs  of  national  legislation — a  defect  which  in 
Germany  in  the  sixteenth  century  was  repaired  by  the 
wholesale  "reception"  of  the  Roman  Law  of  Justinian! 

Very  different  was  the  story  in  England.  As  might 
naturally  have  been  expected,  the  establishment  of  a 
national  Parliament  with  unlimited  powers  was  the  signal 
for  a  definite  challenge  of  the  authority  of  royal  Ordi- 
nances; and,  before  the  Parliament  was  half  a  century  old, 
it  had  won  a  brilliant  victory  in  the  struggle.  For,  on  the 
fall  of  the  "Lords  Ordainers"  in  1322,  it  procured  the 
assent  of  the  youthful  King  to  an  Act  declaring  that  "the 
matters  which  are  to  be  established  for  the  estate  of  our 
Lord  the  King  and  of  his  heirs,  and  for  the  estate  of  the 
realm  and  of  the  people,  shall  be  treated,  accorded,  and 
established  in  Parliament,  by  our  Lord  the  King,  and  by 
the  assent  of  the  prelates,  earls,  and  barons,  and  the  com- 
monalty of  the  realm."  And  though,  doubtless,  there 
were  struggles  to  come,  over  "Proclamations,"  "dispens- 
ing" and  "suspending"  powers,  and  other  devices  by 
which  the  Crown  strove  to  evade  the  great  principle  laid 
down  in  1322,  yet  these  were  in  the  end  unavailing;  and  it 
was  clearly  settled,  at  least  by  the  end  of  the  seventeenth 
century,  that  the  power  of  the  royal  Ordinance,  or  "Order 
in  Council,"  is,  in  substance,  limited  to  upholding  and 


214  THE    STATE   AND   THE   NATION 

enforcing  the  existing  law,  and  carrying  out  duties  entrusted 
to  the  Crown  by  Parliament  itself. 

But,  with  that  practical  wisdom  which  has  distinguished 
so  many  of  the  occupants  of  the  British  throne,  the  Plan- 
tagenet  and  Tudor  monarchs  soon  saw  that  it  was  not 
difficult,  with  the  exercise  of  a  little  diplomacy,  to  give  an 
enormously  wide  and  unquestioned  authority  to  its  own 
ordinances,  by  the  simple  process  of  turning  them  into 
Acts  of  Parliament.  All  that  was  necessary  was,  to  catch 
Parliament  in  a  favourable  mood,  present  to  it  a  "pro- 
ject," or  Bill,  ready  cut  and  dried,  for  carrying  out  the 
royal  Orders,  and  secure  its  approval  by  the  two  Houses. 
This  practice,  in  fact,  accounts  for  the  majority  of  the 
earlier  Acts  of  Parliament,  down  to  the  end  of  the  six- 
teenth century,  or  later.  Here  and  there  we  get  a  genuine 
and  spontaneous  Parliamentary  enactment,  such  as  the 
Act  of  1322,  above  referred  to  (p.  213);  but,  for  the  most 
part,  the  Parliamentary  statutes  of  the  fourteenth,  fif- 
teenth, and  sixteenth  centuries,  are,  as  their  preambles 
expressly  say,  "enacted  by  the  King's  Most  Excellent 
Majesty,  by  and  with  the  consent  and  advice"  of  the 
Parliament.  That  is  to  say,  they  are  "Government  legis- 
lation," accepted  by,  and  clothed  with  the  authority  of, 
Parliament,  but,  in  substance,  the  expression  of  the  will 
of  the  Crown  and  its  advisers.  It  was  a  great  triumph  of 
policy,  which  placed  the  English  Act  of  Parliament  high, 
in  point  of  effectiveness,  above  the  French  Ordonnance 
and  the  German  Ordnung. 

Thus  we  see  that  legislation,  historically,  is  not  the  simple 
exercise  of  sovereign  authority,  which  it  is  usually  con- 
ceived to  be.  Its  initiative  may  come  either  from  the 
State,  through  the  mouth  of  the  "Government,"  or  from 
the  Nation,  through  its  representatives.  The  initiative  of 
the  former  is  nearly  always  in  the  direction  of  change; 
for  the  State  is  always  wanting  to  make  new  rules  to 
enable  it  to  do  its  business  more  effectively.  The  initiative 
of  Parliament  is  just  as  likely  to  be  in  the  interests  of  the 
status  quo;  though,  of  course,  in  later  times,  this  tendency 


THE   STATE  AND   LEGISLATION    215 

has  been  much  less  marked  than  in  the  early  days  of 
Parliament. 

Can  we  go  further,  and  say  that  each  party  to  legisla- 
tion does,  or  should,  take  the  initiative  only  in  its  own 
concerns — that  the  Government,  for  example,  should  only 
propose  legislation  about  its  own  duties,  leaving  the  initia- 
tive in  matters  concerning  the  private  affairs  of  the  citizen 
to  the  latter 's  representatives?  Owing  to  the  peculiar 
arrangement  by  which,  not  only  in  England,  but  in  some 
parts  of  the  British  Empire,  the  Ministers  of  the  Crown  are 
also,  for  the  most  part,  popular  and  influential  representa- 
tives of  the  Nation,  the  question  is  peculiarly  difficult  to 
answer  there.  We  are  more  concerned,  in  concluding  this 
rather  long  chapter,  to  suggest  a  slightly  different  ques- 
tion: What  are  the  proper  limits  of  legislation  itself? 

Of  course,  in  countries  with  written  "Constitutions,"  or 
schemes  of  government,  this  question  is  partly,  though  not 
entirely,  a  legal  one.  In  the  Republic  of  the  United  States, 
for  example,  the  powers  of  the  federal  legislative  body,  or 
Congress,  as  well  as  of  the  States'  legislatures,  are  defined, 
within  wide  limits,  by  the  Constitutions  themselves;  and, 
time  and  again,  the  Courts  have  refused  to  enforce  legis- 
lation which  has  exceeded  the  limits  of  those  powers.  But 
the  Parliament  at  Westminster  is,  and  long  has  been,  in 
name,  a  SOVEREIGN  BODY,  acknowledging  no  legal  limits 
to  its  powers  save  those  imposed  by  physical  conditions. 
In  the  well-known  adage:  "Parliament  can  do  everything 
but  make  a  man  a  woman  and  a  woman  a  man,"  we  have 
the  idea  expressed  in  popular  language.  Here,  and,  within 
the  wide  limits  laid  down  by  their  Constitutions,  also  in 
other  countries,  the  question  is  not  one  of  law,  but  of 
political  wisdom.  None  the  less  important,  and  more 
difficult  to  answer. 

And,  if  our  historical  account  of  the  growth  of  legisla- 
tive power  is  at  all  correct,  History  here,  as  so  often,  gives 
us  the  clue  to  the  answer.  Historically,  the  role  of  Parlia- 
ment, as  distinct  from  the  Crown,  began  with  the  uphold- 
ing, declaring,  and  enforcing  of  the  "good  customs  of  the 


216  THE    STATE   AND   THE   NATION 

realm,"  inherited  from  previous  ages.  At  first  sight,  this 
looks  like  a  counsel  of  intense  conservatism,  almost  of 
fossilism.  But  the  fallacy  is  easily  exposed.  In  theory, 
custom  does  not  change;  in  practice,  in  all  progressive 
communities,  it  does  in  fact  change,  from  year  to  year, 
from  generation  to  generation.  We  no  longer  travel  in 
stage  wagons,  or  light  our  streets  with  oil  lamps.  But  the 
changes  which  slowly  revolutionise  the  life  of  progressive 
communities  come  from  within,  not  from  without.  They 
are  suggested  by  men  of  inventive  genius,  taken  up  by  men 
of  energy  and  practical  ability,  gradually  adopted  by  the 
mass  of  the  people.  Not  all  of  them  are  good;  some  of 
them,  after  fair  trial,  are  decisively  condemned  by  that 
judgment  of  the  better  class  of  citizens  which  we  call 
"public  opinion."  But  there  are  always  some  laggards 
who  refuse  to  adopt  real  improvements — who,  for  example, 
continue  to  build  insanitary  houses,  and  sell  contaminated 
milk.  And  there  are  also  plunderers,  men  of  great  ability, 
it  may  be,  but  of  low  moral  character,  such  as  "profiteers" 
and  financial  swindlers  of  all  kinds,  who  take  advantage 
of  the  unsuspecting  honesty,  or  the  weakness,  of  their 
fellows,  to  introduce  new  and  evil  practices.  It  is  these 
two  classes  with  whom  the  legislator  has  to  deal.  His 
function  is,  not  to  devise  a  new  order  of  life  for  his  com- 
munity, for  such  artificial  schemes  are  sadly  apt  to  prove 
unworkable,  but  to  assist,  by  means  of  the  powerful 
machinery  at  his  disposal,  the  community  to  work  out  its 
own  salvation.  If  he  makes  this  his  aim,  his  efforts  evoke 
at  once  a  response  from  the  best  minds  of  the  nation;  and 
the  supreme  value  of  the  representative,  as  opposed  to  the 
autocratic  legislature,  is,  that  it  enables  the  legislator  to 
keep  constantly  in  touch  with  the  efforts  of  the  better 
minds  of  his  community,  to  assist  their  efforts  towards 
social  betterment,  and  to  punish  attempts  by  the  laggard 
and  the  evil-minded  to  thwart  them.  No  doubt,  in  the 
government  of  "backward"  communities  by  rulers  far 
above  their  subjects  in  enlightenment  and  knowledge,  there 
is  a  great  temptation  to  introduce  reforms  "over  the 


THE    STATE   AND   LEGISLATION    217 

heads  of  the  people."  But  the  benevolent  intention  usually 
ends  in  disappointment;  and  the  reformer  learns  by  bitter 
experience,  that  the  true  path  of  reform  lies,  not  in  the 
sudden  methods  of  revolutionary  change,  but  in  the  patient 
education,  by  example  as  well  as  precept,  of  the  better 
minds  of  the  community  to  aspire  after  improvement,  and 
to  seek  their  own  ways  of  realising  it.  Then,  and  only  then, 
the  valuable  aid  of  the  State  legislature  comes  in  to  com- 
plete the  task  of  reform. 

If  it  be  objected,  that  this  is  to  reduce  to  a  humble  place 
the  heroic  remedy  of  sovereign  legislation,  the  reply  is, 
that  this  is  the  way  pointed  out  by  History,  which  is,  after 
all,  but  the  reflex  of  the  nature  of  Man.  Rarely  has  there 
been  a  case  in  which  a  legislator,  or  a  body  of  legislators, 
patiently  studying  the  aspirations  and  efforts  towards  self- 
government  of  the  community  which  he  or  it  is  set  to  govern, 
and  striving  to  aid  those  efforts  with  the  forms  at  his  dis- 
posal, has  failed  to  win  the  respect  of  that  community, 
and  to  advance  its  welfare.  On  the  other  hand,  the  history 
of  the  world  is  strewed  with  the  wrecks  of  governments 
which  have  treated  their  subjects  as  children,  expected 
to  follow  blindly  and  unhesitatingly  the  unexplained  decrees 
of  an  omniscient  Providence,  or,  worse  still,  as  the  instru- 
ments of  an  ambitious  policy  of  conquest  and  plunder  for 
the  benefit  of  a  governing  caste.  In  other  words,  the  func-  ' 
tion  of  the  State,  in  its  legislative  as  well  as  in  its  other 
activities,  is  to  give  effect  to  the  will  of  the  Nation. 


CHAPTER  XV 

THE  STATE  AND  PROPERTY 

THERE  is  hardly  any  dogma  of  political  controversy  more 
misleading,  than  that  which  defines  property  as  the 
"creature  of  the  State."  It  is  misleading,  because,  while  it 
contains  an  element  of  truth,  it  is  profoundly  inadequate  as 
a  statement  of  the  whole  truth.  It  is  based  upon  a  gen- 
eralisation from  certain  obvious  facts,  which  are  wrongly 
assumed  to  be  the  whole  of  the  facts.  For,  whilst  it  is 
manifest  that  property,  in  its  many  modern  forms,  could 
not  enjoy  its  present  security  and  completeness  without 
the  protection  of  the  State;  whilst  it  is  even  true,  that  the 
State  has  deliberately  fostered  the  creation  of  certain  kinds 
of  property;  it  is  profoundly  untrue  to  say,  that  property 
did  not  exist  before  the  appearance  of  the  State,  or  even 
that  the  State  is  directly  responsible  for  all  the  different 
kinds  of  property  which  have  come  into  existence  since 
the  State  made  its  appearance.  It  is  the  object  of  this 
chapter  to  point  out,  with  some  care,  what  elements  of  that 
wide-reaching  institution  which  we  call  PROPERTY,  upon 
which  so  much  of  modern  social  welfare,  and,  on  the 
other  hand,  ill-fare,  depends,  have  been  contributed  by  the 
State. 

Property,  in  its  earlier  and  simpler  forms,  may  be  de- 
fined as  the  appropriation  of  physical  objects  to  in- 
dividual uses.  That  it  is  produced  by,  or  at  least  responds 
to,  deep-seated  instincts,  not  merely  of  human,  but  of  all 
animate  Nature,  can  hardly  be  denied  by  any  one  who 
has  observed,  ever  so  slightly,  the  habits  of  beasts  and 
birds.  There  is  hardly  a  single  creature,  at  least  among 
the  higher  animal  intelligences,  which  does  not  to  some 

218 


THE   STATE   AND    PROPER. TY      219 

extent  reveal  it,  by  the  provision  of  food  and  shelter.  In 
the  lower  grades  of  intelligence,  this  provision  usually 
consists  simply  in  appropriating  (making  "proper"  to  the 
taker)  certain  parts  of  the  physical  surroundings.  Even  in 
this  crude  stage,  the  acquisition  of  property  cannot  be 
dismissed  as  pure  "robbery";  x  for  it  involves  at  least  the 
exercise  of  foresight,  and,  in  all  probability,  of  some  labour 
and  skill,  as,  for  example,  in  the  capture  and  storing  up 
of  food.  In  the  higher  animal  intelligences,  such  as  those 
of  the  bee  and  the  beaver,  the  elements  of  patience,  labour, 
skill,  and  perseverance  are  clearly  shown;  and,  as  the 
"property"  which  these  creatures  accumulate  undoubtedly 
represents  the  exercise  of  industry,  it  may  fairly  claim  to 
be  acquired  by  the  honourable  title  of  PRODUCTION.  At 
any  rate,  so  far  as  human  beings  are  concerned,  there 
may  be  fairly  said  to  be  no  "natural  property,"  i.e.  na 
physical  objects  which  are  worth  appropriation,  without 
the  exercise  of  at  least  some  degree  of  labour.  Even  the 
gathering  of  wild  fruit,  or  the  hunting  for  grubs  and 
snails,  involves  some  labour. 2 

We  must  then,  if  we  are  to  form  just  conclusions  about 
this  vitally  important  institution,  distinguish  carefully  be- 
tween PROPERTY  and  the  MEANS  OF  PRODUCTION.  The 
latter  term,  though  not,  perhaps,  the  most  accurate  that 
could  have  been  devised,  has  come  to  mean  the  material 
upon  which  human  labour  is  exercised  to  produce  valuable 
things;  and  it  is  unfortunate,  in  the  interests  of  clear 

1  According  to  another,  and  equally  fallacious  dogma,  "property 
is  robbery."     (La  propriete  c'est  le  vol.) 

2  There  is  an  American  story  which  admirably  illustrates  this 
truth.    A  Utopian  lecturer  was  picturing  to  his  audience  a  Golden 
Age,  in  which,  without  toil,  each  man  should  enjoy  the  bounties 
of   "Nature";    and   he   pictured   the  future  citizen   reposing  in 
bowery  glades,  sustained  by  the  rich  fruit  hanging  above  him. 
A  "Weary  Willie"  in  the  audience  enquired  how  the  fruit  was 
to  be  conducted  to  the  expectant  mouth.    "You  will  merely,"  said 
the  lecturer,  his  face  aglow,  "have  to  stretch  out  your  hand  and 
take    it."    "Ah,"    groaned    the    tramp,    disgustedly:      "I    knew 
there  was  a  hitch  somewhere." 


220  THE   STATE   AND   THE   NATION 

thinking,  that  the  term  "property"  should  be  so  fre- 
quently applied  to  what  are  really  only  means  of  produc- 
tion. The  difficulties  in  which  such  a  careless  use  of  terms 
places  a  speaker  or  writer  may  be  seen  in  the  appearance 
of  such  terms  as  "public  property,"  to  signify  objects 
which  have  not  been  appropriated,  or  turned  into  property, 
at  all. 

Yet  another  caution  may  usefully  be  given  to  those  who 
are  seriously  studying  the  subject  of  property  in  the  light 
of  history  and  sober  fact.  The  root  idea  of  property,  or 
appropriation,  is  USER.  The  appropriator,  or  owner,  de- 
sires to  enjoy  the  various  advantages  to  be  derived  from 
the  exclusive  control  of  the  object  appropriated.  But,  as 
we  have  already  seen,  the  idea  that,  among  such  advan- 
tages, is  included  the  right  to  TRANSFER  the  object,  early 
makes  its  appearance,  in  the  form  of  barter,  or  later,  sale; 
and  though,  as  has  again  been  indicated,  this  idea  is 
certainly  older  than  the  establishment  of  the  State  as  an 
institution,  yet  we  shall  find  that,  in  this  direction,  the 
State  has  contributed  very  powerfully  to  the  development 
of  the  institution  of  property.  So  also  in  the  closely  con- 
nected incident  of  INHERITANCE,1  which  is,  obviously,  in 
modern  times,  at  least,  only  a  particular  kind  of  TRANSFER; 
in  this  direction  the  influence  of  the  State  has  been  direct 
and  powerful,  though  it  has  had  to  take  account  of  earlier 
ideas.  Nowadays,  we  are  so  familiar  with  the  "transfer 
of  property,"  that  we  hardly  regard  a  man  as  owner  of  a 
thing  unless  he  can  transfer  it  freely.  And  yet  we  ought 
to  remember  that,  despite  its  obvious  interest  in  promot- 
ing the  free  transfer  of  property,  the  State  has,  even  in 
modern  times,  been  obliged  to  recognise  some  kinds  of 
property  as  inalienable;  as,  for  example,  the  "restrained 
income"  of  a  married  woman,  the  essential  furniture, 
tools,  and  bedding  of  a  bankrupt,  and  the  "homestead," 
inalienable  and  unseizable  by  creditors,  of  the  settler. 

*A  lawyer,  of  course,  will  distinguish  between  intestacy  and 
succession  under  a  will  or  testament.  But  the  popular  use  of  the 
term  "inheritance"  includes  both,  and  will  be  followed  here. 


THE  STATE  AND  PROPERTY   221 

And,  despite  modern  ideas,  we  ought,  as  students  of  social 
institutions,  to  realise,  that  the  institution  of  PROPERTY 
might  well  exist,  though,  doubtless,  in  a  different  form, 
without  the  elements  of  transfer  and  inheritance. 

Let  us  again  summarise,  very  briefly,  the  extent  to 
which  the  institution  of  property  had  developed  before  the 
appearance  of  the  State.  We  may  say  that,  so  far  as 
"chattels"  or  movables  were  concerned,  communities  in 
the  patriarchal,  and,  to  a  very  limited  extent,  even  in  the 
pre-patriarchal  or  primitive  stage,  had  recognised  the 
earlier  idea  of  appropriation,  and  that  patriarchal  com- 
munities had  clearly  also  recognised  the  idea  of  transfer. 
Where  there  is  no  right  of  appropriation,  there  can  be  no 
law  of  theft,  though  there  may  be  a  law  of  robbery  (i.e. 
theft  accompanied  by  violence) ;  and  the  law  of  theft  is  cer- 
tainly older  than  the  State.  Furthermore,  in  the  institution 
of  the  MARKET  (pp.  113-14),  as  well  as  in  the  handing  over 
of  chattels  in  satisfaction  of  blood-fines  (p.  114),  patri- 
archal society  had,  as  we  have  seen,  definitely  recognised 
the  possibility  of  TRANSFER.  About  the  recognition  of 
INHERITANCE  by  patriarchal  communities  we  are,  un- 
fortunately, much  in  the  dark;  but  certain  very  ancient 
rules  of  inheritance  suggest,  beyond  much  possibility  of 
doubt,  that  chattels  in  which  an  inchoate  right  of  property 
in  individual  owners  was  recognised  during  their  lifetime, 
passed,  on  their  death,  to  their  household  or  clan  group. 
A  patient  examination  of  the  scattered  and  difficult 
evidence  about  the  rules  of  the  BLOOD  FEUD  would  prob- 
ably also  yield  interesting  discoveries  as  to  the  way  in 
which  the  blood-fine  was  shared  by  the  relatives  of  a  slain 
man.  There  are  even  clear  traces  of  the  institution  of  WILLS 
or  testaments  in  patriarchal  society;  l  though  the  reluctance 
with  which  such  dispositions  were  admitted  is  proved  by 

*For  further  proof  of  this  assertion,  the  reader  may  be  re- 
ferred to  the  writer's  Law  and  Politics  in  the  Middle  Ages, 
pp.  234-6.  Sir  Henry  Maine's  statement  (Ancient  Law,  p.  172) 
to  the  effect  that  the  Barbarians  had  no  testament  until  they 
borrowed  it  from  Roman  Law,  cannot  be  supported. 


222   THE   STATE   AND    THE   NATION 

the  very  interesting  survivals  known  as  the  retrait  lignager, 
and  the  retrait  communal. *• 

The  action  of  the  State  in  further  developing  the  in- 
cipient rules  of  voluntary  transfer  is  abundantly  seen  in 
the  protection  which  is  afforded  to  the  conduct  of  markets 
(p.  113),  its  ultimate  recognition  of  informal  sales  and 
gifts  of  chattels,  its  early  enforcement  of  the  law  of  theft, 
and  in  its  fruitful  and  far-reaching  law  of  TRESPASS,  or 
infringement  of  possession.  The  history  of  the  law  of  tres- 
pass to  chattels  is  too  technical  to  be  related  here;  but  its 
most  important  effect,  for  our  purpose,  was  the  recognition 
of  temporary  or  partial  alienations  of  chattels,  by  protect- 
ing the  possessor  who  clearly  was  not  the  owner.  Thus 
the  law  of  property  became  enriched  and  developed  by 
such  transactions  as  hiring,  pledging,  borrowing,  deposit, 
carriage,  and  the  like — usually  summed  up  in  the  compre- 
hensive term  "bailments."  It  would  be  untrue  to  say  that 
the  State  created  such  developments,  which  arose  spon- 
taneously out  of  the  developing  economic  and  social  needs 
of  the  community.  But  it  would  be  equally  false  to  deny 
that,  by  the  powerful  protection  which  the  State  extended 
to  them,  by  providing  remedies  for  their  breach,  it  did 
much  to  encourage  and  stimulate  them. 

Nor,  again,  can  we  possibly  overlook  the  influence  of  the 
State  in  developing  the  practice  of  transfer,  by  its  various 
schemes  of  TAXATION.  In  early  days,  as  is  well  known, 
most  of  the  State's  dues  were  paid  in  kind.  The  valuable 
document  known  as  the  Dialogues  of  the  Exchequer,  clearly 
shows  that  this  practice  prevailed  as  late  as  the  twelfth 
century  in  England.  But,  of  course,  it  was  highly  incon- 
venient to  the  State;  and  scholars  are  coming  to  the  con- 
clusion, that  one  of  the  great  causes  of  the  establishment 
of  the  MANORIAL  SYSTEM  (pp.  145-46)  in  Western  Europe 
in  the  eleventh  and  twelfth  centuries,  was  the  desire  of  the 
State  to  transfer  the  labour  of  collecting  dues  in  kind  from 
its  own  officials  to  the  shoulders  of  the  landowning  class, 

*i.e.  the  right  of  the  kindred  or  the  village-group  to  forbid  a 
proposed  alienation,  or,  at  least,  to  anticipate  it  by  pre-emption. 


THE   STATE   AND   PROPERTY      223 

who,  in  return  for  rights  of  jurisdiction  over  the  peasant 
farmers,  undertook  to  pay  to  the  State  the  equivalent  in 
coin.  This  system,  however,  despite  its  accordance  with 
feudal  ideas,  was  essentially  vicious  and  reactionary;  and 
its  downfall  in  England  was  early  presaged  by  the  establish- 
ment of  direct  taxation  of  movables,  of  which  the  Saladin 
or  Crusading  Tithe  (p.  156)  is  a  familiar  example.  As  this 
experiment  was  repeated,  until  it  developed  into  regular 
"subsidies,"  or  "tenths  and  fifteenths"  levied  on  goods,  the 
stimulus  towards  transfer  of  chattels  naturally  became  more 
powerful;  for  though,  as  the  terms  imply,  the  "tenths"  and 
"fifteenths"  were  originally  rendered  in  kind,  we  may  be 
fairly  sure,  that  the  royal  officials  put  strong  pressure  on 
the  taxpayer  to  modify  such  an  inconvenient  form  of 
render,  by  selling  his  corn,  beasts,  and  other  goods,  and 
paying  his  taxes  with  the  proceeds. 1 

But  the  two  chief  and  most  clearly  marked  directions  in 
which  the  State  early  stimulated  the  transfer  of  chattels 
were  the  enforcement  of  debts  by  levy  of  "execution," 
and  the  recognition  of  wills  or  testaments. 

We  have  seen  (p.  80),  that  even  patriarchal  law 
recognised  the  seizure  of  goods  by  way  of  DISTRESS,  to 
compel  an  accused  person  to  come  before  a  tribunal.  But 
we  saw  also,  that  the  right  of  the  claimant  was  limited  to 
seizure.  He  could  inconvenience  the  recalcitrant  debtor  (if 
we  may  call  him  so) ;  but  he  could  not  exact  payment  of 
the  debt  by  selling  the  debtor's  goods.  Even  in  the  long- 
persistent  remedy  of  DISTRESS  FOR  RENT,  the  distraining 
landlord  had,  for  centuries,  no  right  of  sale.  If  the  debtor 
remained  obstinate,  there  was  no  further  legal  remedy. 
We  have  seen  also  (pp.  175-79)  that,  by  substituting  its 
own  writ  of  summons,  and  its  own  tribunals,  for  the  less 
effective  methods  of  the  older  law,  the  State,  where  it  was, 
as  in  England,  successful  in  acquiring  the  administration 

1  It  is,  undoubtedly,  to  this  desire  to  accumulate  coin  that  we 
owe  the  early  claim  of  the  State,  everywhere  admitted  during 
the  Middle  Ages,  to  forbid  the  export  of  money  and  precious 
metals. 


224  THE   STATE   AND   THE   NATION 

of  justice,  had,  incidentally,  abolished,  to  a  very  great 
extent,  the  dangerous  remedy  of  distress.  But  it  could  not 
allow  the  decrees  of  its  tribunals  to  be  defied  with  im- 
punity; and,  if  a  debtor,  after  judgment  solemnly  pro- 
nounced against  him,  still  refused  to  pay,  the  State,  very 
naturally,  instructed  its  own  ministerial  official,  the 
sheriff,  to  "levy"  or  to  "make"  of  the  debtor's  goods  suf- 
ficient to  satisfy  the  judgment.  The  very  ancient  English 
writs  of  levari  facias  and  fieri  facias  cannot,  unfortunately, 
be  dated  with  precision;  but  we  may  be  fairly  sure 
that  the  former,  in  which  the  sheriff  was  directed 
to  hand  over  an  equivalent  of  the  debtor's  goods  to  the 
creditor,  in  satisfaction  of  his  claim,  is  the  older,  and 
that  the  inconveniences  to  which  it  gave  rise  were  the 
cause  of  the  substitution  of  the  latter, *  by  which  the  sheriff 
was  directed  to  "make,"  i.e.  to  sell,  of  the  debtor's  goods, 
sufficient  to  pay  the  creditor  the  amount  of  his  judgment. 
But  these  State  remedies,  as  well  as  the  popular  imitations 
of  them  which  early  appeared, 2  obviously  did  much  to 
familiarise  the  community  with  the  notion  of  TRANSFER 
of  CHATTELS. 

In  its  recognition  of  wills  or  TESTAMENTS  of  chattels, 
the  State  did  not  work  so  directly.  It  was  powerfully 
assisted  by  the  Church,  which,  for  its  own  reasons,  had  a 
direct  interest  in  furthering  it.  For  much  of  the  wealth  of 
the  Church  came  from  the  "death-bed  gifts"  of  the  pious, 
suggested,  or,  at  least,  not  discouraged,  by  the  efforts  of 
the  attendant  confessor.  There  is  evidence  that  State  and 
Church  were  not,  at  first,  entirely  at  one  on  this  important 
matter;  for  the  Church  desired  to  establish  wills  of  land, 
as  well  as  of  chattels — a  desire  inconsistent  with  feudal, 
and  even  older,  principles.  But,  apparently,  about  the 
twelfth  century,  all  over  Western  Europe,  there  was  ef- 
fected a  great  compromise,  by  virtue  of  which  the  Church 

*The  English  levari  facias  had  become  so  obsolete  in  later 
times,  that  its  rediscovery  a  generation  ago  came  as  a  shock, 
and  had  to  be  dealt  with  by  special  legislation. 

'e.g.  "statutes  merchant"  and  "statutes  staple." 


THE  STATE  AND  PROPERTY   225 

took  over  the  whole  execution  of  the  deceased's  desires 
with  regard  to  his  chattels, *  or  the  administration  of  them 
in  the  event  of  his  dying  "intestate,"  i.e.  without  a  will. 
At  first,  the  Church  displayed  a  lamentable  indifference  to 
the  claims  of  creditors  and  kindred,  as  compared  with  her 
own;  but  a  little  pressure  from  the  State  rendered  her 
cautious  lest  she  should  lose  so  valuable  a  privilege  as  the 
control  of  succession  to  chattels.  Accordingly,  in  her 
ecclesiastical  tribunals  (p.  171),  she  granted  "probate," 
or  admitted  proof,  of  the  deceased's  will  to  his  named 
executor,  or,  in  the  case  of  intestacy,  "administration" 
of  his  goods  to  a  kinsman,  merely  reserving  to  herself 
certain  rather  handsome  fees,  any  legacies  left  for  "pious 
uses,"  and  the  decision  of  any  disputes  about  the  validity 
and  interpretation  of  a  will,  or  the  application  of  the  rules 
of  succession.  One  of  the  striking  features  of  the  Church's 
control  of  wills  of  chattels  was  the  long-prevailing  rule, 
that  any  evidence  of  a  will,  even  purely  oral,  was  suf- 
ficient to  "prove"  it.  For  the  "confession"  of  a  dying  man 
is  usually  oral ;  and,  in  the  Church's  eyes,  a  will  of  chattels 
was  a  part  of  a  last  confession,  and  a  means  of  doing 
penance  for  sins. 

Even  more  obvious  than  its  influence  in  encouraging  the 
development  of  property  in  chattels,  has  been  the  influence 
of  the  State  in  developing  the  conception  of  PROPERTY  IN 
LAND.  It  is  not  necessary  to  repeat  what  has  been  said  in 
a  previous  chapter  (pp.  147-49),  of  that  compromise  be- 
tween the  incipient  State  and  older,  patriarchal,  principles, 
which  produced  the  widespread  condition  of  society  known 
as  FEUDALISM.  But  it  is  necessary  to  point  out,  how  the 
doctrine  of  TENURE  (pp.  144-45),  the  central  principle  of 
feudalism  in  its  social  aspect,  paved  the  way  for  the  modern 
conception  of  individual  property  in  land.  The  essence  of 
tenure  is  the  personal  relation  of  lord  and  man,  as  expressed 
and  guaranteed  by  the  holding  of  the  FIEF,  or  estate.  At 
first  a  purely  military,  or  at  least,  political,  principle, 

1  On  the  Continent,  the  right  to  make  a  will  was  not  always 
restricted  to  chattels,  as  it  was  in  England. 


226  THE   STATE   AND    THE   NATION 

we  have  seen  (pp.  145-47)  how  it  was  extended  to 
cover  all  social  relationships,  and  how,  by  the  practice  of 
"commendation"  (p.  144),  and  other  similar  devices,  it 
was  carried  downwards  to  the  lowest  ranks  of  a  society 
chiefly  dependent  upon  agriculture  for  its  existence.  The 
insistence  of  the  State  on  this  principle,  expressed  in  the 
well-known  legal  maxim:  "No  lord,  no  land,"  which  ap- 
pears, over  and  over  again,  in  documents  emanating  from 
the  State,  was  a  definite,  and,  ultimately,  irresistible  chal- 
lenge to  the  older  principle,  which  regarded  land  as  the 
endowment  of  the  communal  group;  and,  the  stronger 
grew  the  grip  of  the  fief-holder  on  his  land,  the  more  in- 
tense grew  the  principle  of  individual  ownership,  until  the 
office  or  "lordship"  of  the  landholder  became  the  property 
of  the  landowner.  This  is  so  clearly  the  origin  of  the  great 
landed  estates  of  the  later  Middle  Ages,  that  it  is  hardly 
worth  while  labouring  the  point,  save  to  remark  once  more 
the  curious  fact,  that,  in  England,  where  feudalism  as  a 
military  and  political  system  was  feeble,  its  influence  as 
a  scheme  of  landownership  was  greatest.  It  is  true  that  a 
faint  shadow  of  the  origin  of  feudal  landownership  survives, 
in  theory,  in  the  "eminent  domain"  of  the  State;  and  on 
this  theory  some  ardent  advocates  of  "State  ownership" 
have  rested  serious  hopes.  But  the  theory  of  the  overlord- 
ship  of  the  State,  though  it  still  works  in  the  isolated 
incident  of  "escheat,"1  practically  disappeared  with  the 
recognition  of  perpetual  inheritance,  freedom  of  alienation, 
and,  ultimately,  of  devise,  with  the  complete  abolition  of 
"feudal  dues,"  and  of  the  claim  to  "forfeiture"  for  treason 
or  felony. 2  It  is  not  to  be  supposed,  of  course,  that 
this  transformation  of  the  original  principles  of  feudalism 
was  accomplished  without  a  struggle;  it  represents,  in  fact, 
a  number  of  severe  struggles,  sometimes  very  protracted. 

1  If  the  owner  of  a  freely  inheritable  estate  dies  intestate  and 
without  heirs,  his  estate  "escheats"  to  his  lord.    Owing  to  causes 
too  technical  to  be  explained   here,   the  benefit  of  an  escheat 
usually  goes  to  the  Crown,  the  supreme  "overlord." 

2  This  took  place  in  England  only  so  late  as  the  year  1870. 


THE   STATE   AND    PROPERTY      227 

But  the  details  would  lead  us  into  legal  technicalities 
unsuited  for  these  pages,  and  occupy  too  large  an  amount 
of  space  to  be  consistent  with  the  general  plan  of  this 
book. 

Equally  unmistakable  has  been  the  policy  of  the  State 
in  its  relations  with  those  communal  groups,  which,  as  we 
have  seen  (pp.  94-96),  represent  the  ideas  of  patriarchal 
society  with  regard  to  landownership.  Three  distinct  lines 
of  attack,  two  of  which  go  back  to  the  earliest  days  of  the 
State,  show  how  that  institution,  despite  its  reliance  for 
many  purposes  on  the  communal  liability  of  the  village 
group  (pp.  185-86),  yet  bent  its  energies  to  destroy  its 
exclusiveness  and  solidarity,  and  to  convert  it  into  a  mere 
locality  of  individual  proprietors. 

The  first  of  these  lines  of  attack  consists  of  introducing 
alien  elements  into  the  commune  or  village  group.  The 
Barbarian  Laws  of  the  Continent  show  the  clearest  traces  of 
a  controversy  which  raged  about  the  homo  migrans,  or 
"wanderer";  and,  in  spite  of  the  obscurity  and  scanti- 
ness of  the  texts,  it  is  impossible  to  doubt  the  meaning  of 
the  struggle.  The  homo  migrans  is  a  detached  individual, 
not  improbably  one  of  the  State's  soldiers,  who  desires  to 
make  a  home  for  himself  in  a  village  to  which  he  is  a 
stranger,  by  taking  up  fresh  land,  or,  possibly,  by  purchas- 
ing land  from  a  member  of  the  village  group.  The  village  is 
up  in  arms  at  once.  "This  fellow  knows  nothing  of  our 
ways;  he  will  try  to  introduce  new-fangled  methods  of 
ploughing  and  reaping.  We  have  as  much  land  under  the 
plough  as  we  can  manage;  why  should  we  be  put  to  the 
labour  and  bother  of  working  and  distributing  more?  How 
do  we  know  that  he  isn't  a  spy?  Why  should  he  take  land 
out  of  our  waste?"  And  so  on.  We  have  only  to  think  of 
the  absolute  isolation  of  the  village  group  eight  hundred  or  a 
thousand  years  ago,  to  realise  the  position,  or,  perhaps  bet- 
ter still,  to  think  of  a  stranger  at  the  present  day  trying  to 
force  himself  as  a  "paying  guest"  upon  an  unwilling  house- 
hold. No  wonder  that  there  were  rows.  But  the  State  was 
resolute.  It  put  down  with  a  heavy  hand  any  disturbances 


228  THE   STATE   AND   THE   NATION 

of  that  kind.  Furthermore,  and  this  is  very  significant,  if 
the  intruder  brings  with  him  "letters  of  settlement"  from  the 
King,  and  he  is  then  interfered  with,  the  King  will  treat 
the  interference  as  direct  rebellion,  and  visit  it  with  the 
severest  penalties.  It  is  easy  to  see  how  a  strong  case 
could  be  made  out  for  the  action  of  the  State.  With  land 
a  superfluity,  and  corn  none  too  plentiful,  the  establish- 
ment of  new  settlers  could  be  urged  as  a  humane  and  en- 
lightened policy.  None  the  less,  it  drove  a  wedge  into  the 
solidarity  of  the  village  group. 

Still  more  solvent  was  the  action  of  the  State  in  en- 
couraging the  alienation  of  their  shares  by  members  of 
the  village  group.  As  industry  developed,  and  men  be- 
came less  fearful  of  changing  their  abodes,  it  would  inev- 
itably happen,  that  an  unsuccessful  farmer  would  think  he 
would  be  better  off  in  another  village,  or  as  an  artisan  in 
a  town.  But  the  idea  of  freedom  of  transfer  was  almost  as 
inconsistent  with  the  principles  of  a  communal  village  as 
the  admission  of  a  stranger,  even  when  it  did  not  involve 
the  latter  step.  Accordingly,  in  the  earliest  examples  of 
sales  of  land,  the  assent  of  the  village  moot  was  clearly  re- 
quired. But  then  comes  a  significant  change.  Instead  of 
the  village  elders,  the  King  or  one  of  his  officials  presides 
over  the  sale,  and  ratifies  it  with  his  approval.  Another 
step  in  the  same  direction  is  the  conveyance  by  fictitious 
lawsuit,1  in  which  the  purchaser  pretends  that  he  is  the  true 
and  original  owner,  who  has  been  dispossessed  by  the  pres- 
ent occupant,  and  the  judgment  of  the  State's  Court  gives 
him  an  indefeasible  title..  More  deadly  still  is  the  resolve 
of  the  State  to  make  the  individual  farmer's  land  liable  for 
his  personal  debts,  not,  necessarily,  by  forced  sale,  but  by 
handing  it  over  to  the  creditor  until  the  debt  is  paid.  This 
step  was  taken  in  England  towards  the  end  of  the  thirteenth 
century,2  and  it  practically  converted  the  communal  alod, 

1  Known  in  England  as  the  "Fine"  or  the  "Common  Re- 
covery," in  Germany  as  the  Auflassung. 

3  By  the  writ  of  Elegit,  issued  in  pursuance  of  a  great  statute 
of  the  year  1285. 


THE  STATE  AND  PROPERTY   229 

no  less  than  the  feudal  estate,  into  an  individual,  alienable 
holding,  and  completed  the  break-up  of  the  village  com- 
munity on  its  personal  side. 

After  this,  it  was  merely  a  question  of  time  for  the 
physical  side  to  be  attacked  also.  This  result  was  effected 
by  the  great  ENCLOSURE  MOVEMENT,  which,  beginning  in 
England  in  the  fifteenth  century,  dragged  intermittently 
along  until  the  nineteenth.  It  traversed  two  distinct  stages. 
The  first  applied  only  to  the  arable  and  meadow  lands  of 
the  village.  The  arguments  in  its  favour  were  specious, 
and  were  well  and  amusingly  put  in  a  well-known  rhymed 
tract  of  the  fifteenth  century,1  in  which  the  superiority  of 
"several"  to  "champion"  (i.e.  champaign,  open)  hus- 
bandry is  vigorously  maintained.  Nor  can  there  be  much 
doubt  that  the  old  "intermixed  farming,"  previously  de- 
scribed (pp.  95-96),  was  enormously  wasteful  and  unen- 
terprising, while  the  new  method  of  carving  up  the  land 
into  individual  plots,  each  surrounded  by  hedges,  and 
worked  according  to  the  individual  taste  of  the  owner, 
gave  better  economic  results.2  But  the  fierce  and  often- 
repeated  riots  which  attended  its  introduction  by  order  of 
the  State,  showed  that  the  mass  of  the  peasants  realised 
that  more  was  involved  than  a  mere  economic  improve- 
ment. They  were  losing  the  shelter  of  an  institution  un- 
der which  they  had  lived  from  time  immemorial,  and  en- 
tering upon  a  new  social  order  which  they  distrusted.  They 
knew  that  the  grantees  of  the  monastery  lands  were  not 
landowners  "for  their  health";  and  they  dreaded,  not  with- 
out reason,  a  conflict  between  their  individual  wits  and 
those  of  their  landlord's  bailiff. 

The  story  was  the  same  in  the  second  stage  of  the  move- 
ment, when  the  waste  lands  of  the  villages  were  enclosed, 

1  By  Thomas  Tusser,  Five  Hundred  Good  Points  of  Husbandry, 
Mavor,  1812.    A  more  scientific  advocate  was  Fitzherbert,  who 
combined  success  in  law  and  agriculture. 

2  Compare  Diagram  B,  the  plan  of  the  enclosed  village,  with 
the  same  village  under  the  old  system  in  Diagram  A,  at  the 
end  of  the  book. 


230  THE   STATE   AND   THE  NATION 

in  the  eighteenth  and  early  nineteenth  centuries.  Here, 
again,  the  arguments  for  the  change  were  plausible.  But 
the  villagers,  though  they  had  by  that  time  sunk  from 
being  owners  of  their  lots  of  arable  and  meadow,  to  the 
position  of  day-labourers,  or,  at  best,  precarious  tenants 
of  great  landowners,  fought  desperately  to  retain  their 
rights  of  grazing,  turf-cutting,  and  trapping  (pp.  98-99) 
on  the  COMMON  WASTE.  But  a  landowners'  Parliament, 
with  its  Inclosure  Acts,  was  too  strong  for  them;  though,  in 
theory,  their  rights  were  preserved  by  the  allotment  to  them 
of  little  patches  of  the  waste  in  individual  ownership.  At 
last  a  more  enlightened  public  opinion  awoke  to  the  hy- 
gienic, rather  than  the  economic,  danger  of  closing  public 
spaces,  especially  near  growing  towns,  where,  for  reasons 
later  to  be  alluded  to,  the  enclosure  movement  was  strong- 
est. And  so  a  fragment,  but  only  a  fragment,  of  the  old 
communal  England  survives  to  the  present  day.  Compared 
with  this  far-reaching  enclosure  movement,  it  seems  almost 
unimportant  to  mention  the  individualising  process,  prob- 
ably connected  with  it,  which  followed  the  confiscation  of 
the  MONASTERY  and  GILD  lands  in  the  sixteenth  century. 
The  best  excuse  that  can  be  offered  for  this  wanton  break- 
up of  a  social  system  which  had  existed  for  ages  was,  per- 
haps, the  havoc  in  it  which  had  already  been  wrought  by 
the  terrible  visitations  of  the  "Black  Death"  in  the  four- 
teenth century,  which  virtually  made  the  manorial  system 
of  serf-labour  unworkable. 

But  now  it  is  a  noteworthy  fact,  that,  just  when  the 
State  had  succeeded,  most  completely,  in  breaking  up  the 
old  LAND  COMMUNITIES,  and  also,  almost  as  completely 
(as  we  shall  see  when  we  come  to  deal  with  the  State  and 
Industry),  the  old  INDUSTRIAL  COMMUNITIES,  or  gilds,  it 
began  to  be  extremely  active  in  establishing  new  COM- 
MERCIAL COMMUNITIES,  or,  as  they  are  commonly  called, 
COMPANIES.  The  precise  steps  by  which  this  result  was 
achieved  are  too  technical  for  these  pages;  but  the  barest 
outline  of  the  process  may  be  indicated. 

The  germ  lay  in  the  old  "regulated"  companies  of  for- 


THE   STATE   AND    PROPERTY      231 

eign  merchants,  such  as  the  Hanse  League,  in  which  mem- 
bers of  the  company,  and  they  alone,  were  allowed  to  carry 
on  trade,  under  certain  regulations,  in  certain  areas.  We 
have  seen  (p.  Ill),  that  there  was  a  certain  amount  of 
common  liability  attached  to  these  associations;  but  they 
differed  from  modern  commercial  companies,  in  that  their 
members  did  not  trade  upon  a  COMMON  STOCK,  but  each 
ventured  his  own  capital,  at  his  own  risk,  in  his  own  deal- 
ings. The  idea  spread  rapidly  after  the  great  geographical 
discoveries  of  the  fifteenth  and  sixteenth  centuries,  and  was 
extended  to  companies  of  native  merchants  trading  to  for- 
eign parts.  Examples  are  the  English  Levant  Company, 
Russian  Company,  Guinea  Company,  and,  most  famous  of 
all,  East  India  Company. 

Then  came  a  vital  change,  in  which  the  last-named 
company,  in  England  at  least,  is  believed  to  have  led  the 
way.  Instead  of  each  member  trading  with  his  own  stock, 
he  contributed  a  certain  SHARE  of  capital  to  the  COMMON 
STOCK,  and  received  a  DIVIDEND  or  proportionate  return 
on  his  contribution,  out  of  the  profits  made  by  a  govern- 
ing body  of  "Directors,"  who  traded  with  the  common 
stock.  No  particular  part  of  the  actual  goods  or  money 
employed  belonged  to  the  individual  member;  his  share  was, 
in  legal  language,  "incorporeal,"  i.e.,  it  was  not  concentrated 
in  tangible  objects  like  specific  bales  of  cloth  or  spices,  but 
consisted  merely  in  the  right  to  a  proportionate  share  in 
the  profits,  and  a  liability  to  bear  a  proportionate  share  of 
the  losses,  of  the  business  as  a  whole. 

The  difficulties  in  the  way  of  working  this  revolutionary 
idea  were  great;  but  they  were  ultimately  solved  by  the 
application  to  the  new  commercial  communities  of  the  then 
novel  device  known  as  the  CORPORATION,  or  "legal  person." 1 
We  have  seen  already  (p.  147),  that  this  device,  probably 
derived  from  the  ecclesiastical  community,  such  as  the 
monastery  or  the  cathedral  chapter,  had  begun  to  be  ap- 
plied, at  the  close  of  the  Middle  Ages,  to  the  municipal 

1The  alternative  expressions  "fictitious  person,"  or  "artificial 
person,"  are  to  be  deprecated,  as  suggesting  false  views. 


232  THE   STATE   AND    THE   NATION 

community,  or  BOROUGH,  which,  by  its  aid,  had  established 
itself  firmly  as  a  legal  person,  with  considerable  powers, 
not  merely  of  government,  but  of  holding  PROPERTY.  Un- 
fortunately, this  device  was  never  extended  in  England  to 
the  rural  communities  of  the  shire,  the  hundred,  or  the  vil- 
lage; or  their  fate  might  have  been  very  different  from 
its  actual  history.  But  it  was  freely  applied,  and  with  con- 
spicuous success,  to  the  new  commercial  communities  or 
companies;  always,  however,  with  the  strict  reservation 
(in  this  country  at  least)  that  no  corporation  could  be 
created  without  the  express  sanction  of  the  State,  which, 
as  we  have  seen,  was  inclined  at  first  to  be  very  jealous 
of  it. 

Now  the  root  idea  of  a  CORPORATION  is,  that  it  is  a  body 
of  individuals1  acting  together  for  a  common  purpose, 
which  has  a  legal  existence  apart  from  the  individual  legal 
existences  of  its  members.  In  the  monastic  community, 
the  individual  existences  were  merged  completely — at  least, 
so  far  as  the  outside  world  was  concerned — in  the  cor- 
porate existence  of  the  community;  the  man  or  woman  who 
entered  it  became,  at  least  before  the  religious  Reformation, 
"dead  to  the  world,"  and  his  separate  existence  was  no 
longer  recognised  for  secular  purposes.  But  in  the  later 
municipal  and  commercial  corporations,  no  such  result  was 
desired;  and  the  merger  of  the  individual  existence  only 
extended  so  far  as  the  common  affairs  of  the  corporation 
were  concerned.  Consequently,  the  individual  member  may 
even  deal,  as  an  individual,  with  the  corporation  of  which 
he  is  a  member — may  contract  with  it  or  commit  offences 
against  it.  This  result  took  a  long  time  to  establish  it- 
self; and  the  difficulties  it  occasioned  are  amusingly  il- 
lustrated in  the  old  reports  of  legal  cases.  For  instance, 
a  burgess  of  a  Midland  borough  was  prosecuted  for  steal- 

*"In  the  most  common  case,  that  of  the  "corporation  aggregate," 
there  are  several  individual  members  at  the  same  time.  Where 
there  is  only  one  member  at  any  given  time,  e.g.  a  bishop  or  rec- 
tor, the  corporation  is  said  to  be  "sole."  The  corporation  "sole" 
is  difficult  to  work,  and  is  said  to  be  peculiar  to  English  law. 


THE  STATE  AND  PROPERTY  233 

ing  the  corporation  plate.  He  pleaded  that  he  was  a  mem- 
ber of  the  corporation,  and  could  not  be  prosecuted  for 
stealing  "his  own"  plate.  Nevertheless,  the  device,  with  all 
its  difficulties,  proved  to  be  enormously  useful,  and  has  con- 
stantly been  developed  and  amended  during  the  last  two 
centuries.  One  of  its  most  important  developments  has 
been  that  of  LIMITED  LIABILITY,  the  principle  by  which 
the  liability  of  each  member  of  a  company,  or  economic 
corporation,  to  contribute  towards  the  debts  of  the  com- 
pany, is  limited  to  the  amount  of  his  share  in  the  capital 
of  the  company.  Naturally,  there  was  much  hesitation 
on  the  part  of  the  State  in  recognising  the  validity  of  this 
principle;  and  special  precautions  are  taken  to  protect  the 
public  when  it  is  adopted.  Nevertheless,  if  we  may  judge 
by  the  rapidity  with  which  it  has  spread,  its  advantages1 
outweigh,  in  public  opinion,  its  disadvantages.  A  much 
more  doubtful  development  in  this  country  is  the  "prk 
vate  company,"  i.e.,  a  company  whose  shares  are  not  of- 
fered to  the  general  public,  and  cannot,  without  the  con* 
sent  of  the  company,  be  alienated  beyond  a  restricted  cir- 
cle. This  development,  in  effect,  enables  an  ordinary  pri- 
vate partnership,  or  even  an  individual,2  to  enjoy  most  of 
the  advantages  of  private  trading  and  public  enterprise, 
without  the  inconveniences  of  either. 

By  these  steps  the  State  has  succeeded  in  creating,  or, 
at  least,  in  fostering,  a  new  type  of  PROPERTY,  now  of 
immense  importance — the  "share"  (action,  Aktien), 
"stock,"  "debenture" — which  differs  from  the  older  kinds 
of  property  in  not  being  concentrated  on  any  definite 
physical  objects,  such  as  land  and  cattle,  but  in  being  only 
a  right  to  receive  a  proportion  of  any  profit  which  may 
arise  from  a  series  of  commercial  transactions.  Neverthe- 

1  The  great  advantage  is  supposed  to  be,  that  enterprise  will  be 
stimulated  by  the  concurrence  of  large  numbers  of  small  capital- 
ists, who  are  willing  to  risk  some,  but  not  all,  of  their  capital; 
while  the  profits  of  successful  enterprise  will  be  widely  diffused. 

2  The  so-called  "one-man  company,"  worked  by  an  individual 
through  a  small  group  of  nominees. 


234  THE   STATE   AND   THE   NATION 

less,  the  ultimate  connection  of  this  "ideal"  or  "incor- 
poreal" property  with  tangible  objects,  is  shown  by  the 
technical  name  of  "chose  (or  thing)  in  action,"  applied  to 
it  by  English  law.1 

We  have  now,  in  concluding  our  sketch  of  modern  de- 
velopments of  property,  to  notice  two  other  and  still  more 
"ideal"  examples,  in  the  establishment  of  which  the  State 
has  also  played  a  great  part,  and  of  which  one,  at  least, 
is  of  great  economic  importance. 

These  are  the  two  kinds  of  property  known  as  PATENTS  2 
(including  "trade-marks")  and  COPYRIGHT  (including 
"designs").  The  essence  of  both  is  the  same,  viz.  the 
claim  to  a  monopoly  of  the  right  to  prevent  any  goods, 
produced  as  the  result  of  the  protected  invention,  being 
sold,  except  by  the  inventor  himself.  Consequently,  the 
right  is  negative  in  character,  and  would  be  purely  selfish 
and  anti-social,  but  for  the  fact  that  it  is  merely  used  (in 
genuine  cases)  to  enable  the  inventor  to  obtain  a  fair  share 
of  the  proceeds  of  the  sale  of  the  manufactured  goods.  The 
actual  origins  of  the  two  kinds  of  property  are  different; 
though  both  are  closely  connected  with  State  action.  PAT- 
ENTS are  monopolies,  and,  as  such,  primd  facie  inconsistent 
with  that  freedom  of  individual  enterprise  which  is  regarded 
as  essential  to  the  prosperity  of  the  community.  In  Eng- 
land, at  least,  they  owe  their  origin  to  a  grudging  admission 
by  an  Act  of  Parliament  of  the  early  seventeenth  century, 
which,  while  sternly  denouncing  monopolies  as  a  whole, 
allowed  a  strictly  limited  grant  of  a  monopoly  for  any  "in- 
vention new  within  the  realm,  to  the  true  and  first  inventor 
thereof."  COPYRIGHT  is  the  result  of  severe  police  meas- 

1  The  term  was  first  applied  to  claims  for  fulfilment  of  con- 
tracts, such  as  bills  of  exchange,  and  claims  to  recover  land  or 
goods  alleged  to  be  unlawfully  detained.    The  transfer  of  these 
was  regarded  with  suspicion  by  the  Courts,  as  likely  to  lead  to 
oppression. 

2  From  the  fact  that  they  are,  in  this  country,  protected  by 
"Letters  Patent,"  which,  in  return  for  a  limited  protection,  reveal 
the  nature  of  the  process  to  any  one  who  cares  to  look  at  the 
State's  records. 


THE  STATE  AND  PROPERTY   235 

ures  undertaken,  on  the  introduction  of  printing,  to  regu- 
late the  activities  of  the  Press — a  policy  which  made  it 
penal  for  any  one  to  issue  printed  matter  without  a  State 
licence.  Quite  naturally,  the  persons  who  actually  acquired 
licences  to  print  their  productions,  acquired  a  practical 
monopoly  of  them;  and  the  abolition  of  the  licensing  sys- 
tem was  speedily  followed  by  legislation  definitely  recognis- 
ing this  monopoly,  under  certain  restrictions.  A  precisely 
similar,  but  much  less  justifiable  result  was  produced,  on 
an  infinitely  larger  scale,  by  the  system  of  issuing  licences 
for  the  sale  of  ALCOHOLIC  LIQUOR,  developed  in  the 
eighteenth  century,  and  followed,  after  many  years  of  tacit 
recognition,  by  the  statutory  guarantee  of  monopoly  ac- 
corded by  recent  legislation. 

We  are  now  in  a  position  to  sum  up  the  respective  con- 
tributions of  the  State  and  the  community  to  the  fully  de- 
veloped institution  of  PROPERTY,  and  then  to  consider  for 
a  moment  whether  this  record  suggests  any  useful  hints  with 
regard  to  the  future  of  this  vital  institution. 

Broadly  speaking,  the  State  has  not  created  property  as 
a  whole.  The  instinct  of  property,  i.e.,  appropriation,  is 
so  deeply  seated  in  humanity,  that  it  finds  clear  and  defi- 
nite expression  long  before  the  appearance  of  the  State; 
it  is,  in  fact,  justified  by  some  philosophers  on  the  ground 
that  its  realisation  is  essential,  not  merely  to  citizenship, 
but  to  human  personality.  On  the  whole,  it  seems  im- 
possible to  question  the  justice  of  this  view,  as  applied  to 
a  world  in  any  way  resembling  that  in  which  we  live. 
In  such  a  world,  the  absolutely  property-less  person  is  a  : 
slave;  because  he  is  dependent  for  the  very  means  of  ex-  j 
istence  on  the  will  of  others.  It  is  the  question  of  degree 
which  is  really  important.1 

But  again  we  ask:  If  property  is  appropriation,  from 
or  of  what  is  it  an  appropriation?  And  then  we  find,  on 

1  There  have  been  many  noble  attempts  to  lead  a  useful  life 
without  the  aid  of  property,  e.g.  by  the  Mendicant  Orders 
("Friars")  of  the  Middle  Ages;  but  these  have  been  successful 
only  by  virtually  abandoning  their  professed  principles. 


236  THE   STATE  AND   THE   NATION 

examination,  that  all  valuable  property  is  a  compound  of 
the  skill  and  labour  of  the  appropriator  and  the  resources 
p£jthe  community.  This  is  true  even  of  mere  loot,  or 
plunder,  whether  acquired  by  the  older  methods  of  brute 
force,  or  by  the  modern  methods  of  the  unscrupulous  finan- 
cier. It  is  also  true,  at  the  other  end  of  the  scale,  of  the 
inventor,  the  author,  and  the  painter;  for,  even  if  these  owe 
nothing  to  the  intellectual  and  artistic  inheritance  they  have 
received  from  the  community,  which  is  far  from  being  the 
case,  their  productions  would  be  of  no  value  as  property, 
unless  the  community  were  prepared  to  give  services  in  re- 
turn for  them.  The  difference  between  the  two  cases  is  that, 
in  the  former,  the  labour  and  skill  of  the  appropriator  are 
of  a  low  and  anti-social  character,  whilst,  in  the  latter, 
they  are  of  great  social  value,  probably  much  greater  than 
any  return  received  for  them. 

It  has  often  been  objected  against  attempts  to  analyse 
the  nature  of  property,  that  it  is  impossible  to  distinguish 
between  "raw  material"  and  "finished  products" — that  both 
alike  involve  human  labour,  directly  or  indirectly.  This 
is  perfectly  true.  Even  coal  at  the  pit's  mouth,  or  iron 
at  the  blacksmith's  forge,  is  a  "finished  product,"  so  far 
as  the  miner  or  the  smelter  is  concerned;  though  it  is  the 
raw  material  of  the  smith.  But,  so  far  as  the  smith  is 
concerned,  it  is  his  "means  of  production,"  as  we  have 
called  it;  and,  so  far  as  he  is  concerned,  it  is  part  of  the 
resources  of  the  community.  The  problem  of  appropria- 
tion arises  each  time  that  the  product  changes  hands;  and 
the  great  question  is:  Does  the  new  acquirer  give  the  com- 
munity value  for  his  appropriation? 

Now,  so  far  as  the  direct  creation  of  property  is  con- 
cerned, the  power  of  the  State  is  limited  by  its  character. 
The  State,  as  we  have  seen,  is  essentially  military  in  char- 
acter; its  methods,  whatever  its  ultimate  objects,  are  mainly 
non-productive — i.e.,  they  do  not  produce  values,  but  merely 
preserve  or  destroy  them.  It  is,  however,  familiar  from 
its  earliest  stages  with  the  policy  of  annexation,  or  plun- 
der, whether  conducted  at  the  expense  of  alien  communi- 


THE  STATE  AND  PROPERTY   237 

ties  or  its  own.  It  can,  therefore,  create  property,  by  hand- 
ing over  the  resources  of  the  community  to  individuals  or 
small  groups  of  individuals;  and  this  is,  in  effect,  what  the 
State  has  done,  by  creating  individual  or  private  property  in 
land  (pp.  225-30),  and  protecting  it  with  all  its  overwhelm- 
ing power.  No  doubt,  originally,  the  State  received  some 
return  for  this  reckless  squandering  of  the  resources  of  the 
community.  On  the  other  hand,  the  obviously  limited  ex- 
tent of  the  resources  thus  alienated,  their  vital  necessity  to 
the  community,  their  constantly  increasing  value  (due  to 
the  discovery  of  processes  or  elements  unimagined  when  the 
appropriation  was  made,  and  to  the  increase  of  popula- 
tion dependent  upon  them  as  "means  of  production"),1 
cannot  but  raise,  in  the  minds  of  thoughtful  students,  the 
question  whether  the  policy  of  the  State  in  that  respect  is 
really  irrevocable,  or  whether  a  Statute  of  Monopolies, 
somewhat  like  that  applying  to  chattels  (p.  234),  could 
not  also  with  advantage  be  applied  to  land. 

And,  if  the  State  has  done  little  to  create  property  in 
chattels,  it  has  done,  as  we  have  seen,  a  great  deal  to 
protect  and  develop  it.  It  is  probably  not  quite  true  to  say, 
that  property  in  chattels  could  not  long  exist  without  the 
protection  of  the  State;  but  the  parlous  condition  of  Trade 
Union  funds  before  they  were  protected  by  recent  legisla- 
tion, shows  how  important  is  that  protection  under  modern 
conditions.  It  is,  therefore,  essential  that  the  State  should, 
on  the  one  hand,  not  refuse  to  extend  its  protection  to 
property  to  which  the  contribution  of  the  appropriator  is 
high,  both  in  value  and  quantity,  and  the  amount  appropri- 
ated from  the  resources  of  the  community  small,  and,  on 
the  other  hand,  that  it  should  not  allow  its  protecting 
shield  to  be  a  bulwark  for  predatory  and  anti-social  ex- 
ploitation of  the  resources  of  the  community.  A  con- 
spicuous example  of  the  latter  weakness  may  be  seen  in  the 

aThis  is,  of  course,  the  explanation  of  the  "unearned  in- 
crement" ;  and  the  vice  of  the  Enclosure  System  (pp.  229-30)  was, 
that  it  gave  almost  the  whole  of  this  enormous  potential  wealth 
to  the  great  landowners. 


238  THE   STATE   AND   THE   NATION 

abuse  of  the  peculiarly  English  device  of  the  TRUST,  by 
which  a  small  number  of  individuals,  or  a  single  individual, 
stands  forward  as  legal  owner  of  property,  the  economic 
advantages  of  which  he  is  bound,  by  the  most  solemn 
liabilities,  to  hand  over  to  others.  Originally  devised  for 
the  purpose  of  protecting  women,  children,  ecclesiastics, 
and  others  to  whom  the  legal  liabilities  of  property-hold- 
ing were  unsuited,  and  supported  by  the  powerful  machinery 
of  the  Church,  it  is  now  employed  as  a  cover  for  vast  com- 
mercial transactions,  some  of  them  of  very  doubtful  moral- 
ity, by  persons  perfectly  well  able  to  bear  the  burdens  of 
legal  ownership. 

Finally,  the  State  has,  as  we  have  seen,  done  much  to 
alter  the  original  character  of  property,  by  its  insistence 
on  the  free  development  of  alienation,  or  TRANSFER.  If 
the  philosophical  justification  of  property,  before  alluded 
to  (p.  235),  is  sound,  property  must  be  regarded  as  an  en- 
dowment enabling  a  man  to  develop  his  personality.  As 
such,  if  our  view  of  the  origin  of  property  is  at  all  correct, 
it  probably  began  its  history.  What  a  man  required  for  his 
essential  needs  of  defence  against  attack,  for  shelter,  cloth- 
ing, and  food,  he  appropriated,  in  accordance  with  the  gen- 
eral sentiment  of  his  community.  It  was  not  until  the 
possibilities  lying  concealed  in  the  processes  of  PRODUCTION 
and  EXCHANGE  (pp.  102,  112)  revealed  themselves,  and, 
therewith,  the  multiplication  of  desires,  that  the  practice 
of  individual  accumulation  began.  Quite  naturally,  this 
practice  inevitably  stimulated  the  desire  for  free  alienation, 
which,  as  we  have  seen  (p.  223),  the  State,  for  its  own 
reasons,  also  favoured.  Freedom  of  transfer  is,  in  truth, 
an  essential  of  individual,  or  even  of  corporate  industry, 
on  a  great  scale. 

But  this  kind  of  transfer  implies  alienation  only  between 
living  persons,  or,  as  lawyers  say,  inter  vivos.  A  dead  man 
cannot  carry  on  industry  or  commerce;  the  inheritance  or 
legacy  of  a  fortune  is  not  an  industrial  transaction,  nor  is 
a  "settlement,"  i.e.,  a  donation  prompted  merely  by  char- 
ity, affection,  or  caprice.  Any  ethical  claim  which  the  ap- 


THE   STATE   AND    PROPERTY      239 

propriator  of  the  resources  of  the  community  may  have  to 
retain  his  appropriations  perishes  with  him;  but  for  the 
State's  rules  of  testament  and  inheritance,  he  could  control 
them  no  further.  This  truth,  obscured  by  the  survival  of 
the  traditions  of  the  petty  community  of  the  clan  and  the 
gild,  is  beginning  to  be  perceived  by  the  larger  community 
of  the  nation,  as  witnesses  the  increasing  scale  of  Death 
Duties.  In  truth,  this  rising  scale  only  testifies  to  a  log- 
ical appreciation  of  the  changed  circumstances.  In  an  older 
condition  of  society,  the  clan,  or  the  household,  or  the  gild, 
was,  in  fact,  the  community,  from  whose  resources  the  ac- 
cumulated property  of  a  deceased  member  was  drawn;  it 
was  fitting,  therefore,  that  it  should  return  to  that  com- 
munity on  his  death.  Now  the  community  from  which  a 
man  draws  his  property  is  the  nation;  it  is  fitting,  there- 
fore, that  the  nation  should  inherit  an  ever-increasing  share 
of  the  property  of  its  deceased  members. 

But  the  poverty  of  the  arguments  with  which  unlimited 
rights  of  testamentary  disposition  and  inheritance  are  de- 
fended is,  perhaps,  the  most  suggestive  sign  of  the  inde- 
fensible character  of  such  rights.  The  anarchic  claim  to 
"do  what  I  will  with  mine  own"  ignores,  not  merely  the 
fact  that,  but  for  the  State's  assistance,  one's  "own"  would 
be  a  precarious  possession,  but  the  fact  that,  in  no  serious 
sense,  can  a  dead  man  be  said  to  "own"  property.  The 
natural  distress  which  a  parent  would  otherwise  feel  in  the 
prospect  of  leaving  young  children  unprovided  for,  could 
be  met  by  a  strict  limitation  of  a  moderate  equipment  to 
actual  dependents,  or,  better,  by  an  endowment  by  the 
parent  during  his  lifetime.  The  familiar  argument,  that 
a  confiscation  of  wealth  by  the  nation  on  the  death  of  its 
owner  would  do  away  with  incentives  to  industry,  is  con- 
tradicted by  experience,  especially  by  the  comparative  rar- 
ity with  which  rich  men  give  away  their  wealth,  even  to 
their  children,  in  their  own  lifetimes.  The  real  incentives 
to  industry  are  habit,  the  joy  of  work,  the  stimulation  of 
the  nervous  system  which  it  engenders,  the  prospect  of  suc- 
cess and  its  consequent  esteem,  and,  of  course,  the  desire 


240  THE   STATE   AND   THE   NATION 

to  satisfy  the  ordinary  needs  of  existence.  Secure  to  the 
worker  the  product  of  his  labour  during  his  lifetime,  let 
him  show  it  or  conceal  it,  according  to  his  instincts;  and 
he  will  not  be  discouraged  by  the  thought  that  it  will  go 
to  the  nation  after  his  death.  Doubtless  there  are  occa- 
sional instances  of  abnormal  egotism,  such  as  that  of  the 
banker  Thellusson,  who  deprived  all  his  known  relatives  of 
interest  in  a  large  part  of  his  fortune,  in  order  that  it  might 
accumulate  and  preserve  his  memory  for  the  benefit  of  un- 
known generations.  But  we  already  regard  such  freaks  as 
anti-social,  and  legislate  against  them.  It  is  but  to  extend 
the  principle. 

How  far  the  further  restriction  of  property  in  the  life- 
time of  its  acquirer  might  be  safely  attempted,  is  a  more 
difficult  question,  opening,  as  it  does,  the  whole  question 
of  the  value  of  large  accumulations  of  wealth  in  promoting 
the  well-being  of  the  community.  It  is  generally  contended 
that,  without  such  accumulation  in  the  hands  of  individu- 
als or  small  groups,  industrial  progress  is  impossible;  and 
it  certainly  seems  a  condition  precedent  to  any  serious  at- 
tempt to  abolish  CAPITALISM,  that  non-capitalist  producers 
should  show  themselves  capable  of  providing  for  the  es- 
sential needs  of  the  community.  It  may  then  be  consid- 
ered whether  the  superfluity  is  desirable.  But  this  is  a 
problem  which  more  properly  belongs  to  a  later  chapter. 
It  would  seem  that,  regard  being  had  to  its  character,  the 
true  functions  of  the  State  in  connection  with  property  are, 
to  refuse  to  protect  or  favour  any  appropriation  without  a 
due  return  on  the  part  of  the  appropriator,  to  restrain 
abuses  of  property,  to  raise  the  necessary  revenue  of  the 
State  from  those  best  able  to  contribute  to  it,  and  to  re- 
strict the  duration  of  proprietary  powers  within  reasonable 
limits. 


CHAPTER  XVI 

THE   STATE   AND   INDUSTRY 

IN  order  to  appreciate  rightly  the  history  of  the  relations 
between  the  State  and  Industry,  we  must  once  more  re- 
member that  the  State,  in  its  origin,  was  not  an  economic 
but  a  military  institution,  which  concerned  itself  only  with 
industrial  life  as  that  life  was  necessary  to  maintain  its  own 
existence.  An  army  cannot,  of  course,  live  without  supplies 
of  men  and  material;  and  we  have  seen  (pp.  132-33)  how, 
in  its  earliest  days,  the  State,  formed  by  immigration  and 
conquest,  sometimes  adopted  a  crude  and  simple  system  of 
plunder  to  satisfy  its  needs.  But,  in  the  nature  of  things, 
such  a  system  could  not  continue  indefinitely;  and  the 
State,  gradually  established  as  a  permanent  institution,  was 
obliged  to  bring  itself  into  permanent  relationship  with 
the  industrial  life  of  its  subjects,  whence  alone  (apart  from 
wars  of  conquest)  the  supplies  necessary  for  its  mainte- 
nance could  come. 

We  have  seen,  also,  how  the  inability  of  the  gigantic 
Empire  of  the  Franks  in  Western  Europe — that  pale  imita- 
tion of  the  ancient  Roman  Empire — failed  to  achieve  the 
task  of  directly  relating  itself  to  its  individual  subjects,  and 
how,  by  the  mysterious  compromise  known  vaguely  as 
FEUDALISM  (Ch.  X.),  it  ultimately  succeeded  in  placing  be- 
tween itself  and  its  subjects  a  governing  military  class, 
which  should,  on  the  one  hand,  supply  the  requirements  of 
the  State  in  men  and  money,  while,  on  the  other,  that  class 
exercised  almost  unfettered  control  over  the  mass  of  the 
people,  by  means  of  its  seignorial  or  manorial  organisation. 
For  a  long  while,  historians  laid  undue  stress  upon  the 
military  side  of  this  organisation,  which  was,  in  itself, 

241 


242   THE   STATE   AND   THE   NATION 

doubtless,  important.  But  more  modern  research  has 
shown,  that  the  elaborate  system  of  "works  and  services," 
or  labour  dues,  upon  which  the  manorial  organisation  was 
founded,  played  an  equally  important  part  in  the  scheme. 
The  manorial  lord  undertook  responsibility  for  the  economic 
as  well  as  for  the  military  dues  of  his  "tenants."  In  prin- 
ciple, the  direct  claims  of  the  State  on  the  individual  farmer 
or  craftsman — the  "tallage"  of  England,  the  faille  and  the 
corvee  of  France — only  applied  in  the  royal  domains,  where 
the  King  governed  directly.  A  notable  instance  of  this 
truth  is  the  famous  Domesday  survey  of  England,  directly 
undertaken  as  a  basis  for  the  rendering  permanent  of  the 
Danegeld.  "Domesday  Book  is  a  Geld  Book." 

But,  with  the  decay  of  feudalism,  and  the  accompanying 
revival  of  the  State,  the  latter  sought,  naturally,  to  come 
into  closer  contact  with  its  subjects;  and,  as  we  have  al- 
ready seen  (pp.  156-57),  one  of  the  first  efforts  which  it 
made  was  to  establish  a  system  of  DIRECT  TAXATION.  The 
nucleus  of  this  system  already  existed  in  the  port  dues,  or 
"customs," 1  which,  from  very  early  times,  had  been  ex- 
acted by  rulers  from  foreign  traders  as  the  price  of  ad- 
mission to  their  territories,  and  from  natives  on  the  plea 
of  the  necessity  for  policing  the  seas.  But,  in  the  twelfth 
and  thirteenth  centuries,  at  first  under  pretence  of  a  Cru- 
sading or  "Saladin  Tithe,"  subsequently  under  a  plea  of 
general  necessity,  direct  taxation  of  land  and  movables  was 
introduced  by  the  State,  though  not  without  fierce  oppo- 
sition; and  we  have  seen  (pp.  187-89)  how  that  opposi- 
tion led,  everywhere  in  Western  Europe,  to  the  establish- 
ment of  representative  institutions,  or  PARLIAMENTS,  whose 

1  It  is  true  that,  in  modern  practice,  "direct"  taxation  means 
taxation  which  falls  immediately  upon  the  individuals  who  are 
intended  to  bear  it;  and,  in  this  sense,  port  dues  are  classed  as 
"indirect."  But,  as  they  are  collected  directly  by  State  officials, 
they  are  obviously  different  from  the  feudal  dues.  There  was 
an  intermediate  stage,  lasting  a  long  while  in  some  countries, 
in  which  "farmers,"  or  contractors,  undertook  to  collect  the  port 
dues  for  fixed  sums,  retaining  any  surplus  as  profit.  This  may 
be  regarded  as  a  kind  of  fiscal  feudalism. 


THE    STATE   AND    INDUSTRY      243 

earliest  and  most  important  function  was  the  regulation  of 
taxation.  This  result  was  destined,  in  the  course  of  time, 
to  change  the  whole  character  of  the  State,  and  to  trans- 
form it  from  an  aloof  military  organisation  into  an  organ 
of  the  national  will.  But,  as  is  well  known,  and  has  before 
been  pointed  out  (pp.  189-96),  the  decay  of  the  Continental 
Parliaments,  which  was  complete  by  the  end  of  the  seven- 
teenth century,  left  the  working  out  of  this  momentous 
change  practically  to  Great  Britain,  and  gave  that  country 
its  unique  position  in  the  history  of  political  development. 
Thus  this  chapter  will,  inevitably,  deal  mainly  with  British 
experience,  until  it  reaches  the  period  when  the  great 
French  Revolution  caused  a  sudden  revival  of  representa- 
tive institutions  all  over  Western  Europe. 

Incidentally,  we  may  here  mention  one  immediate  re- 
sult of  this  closer  relation  between  the  State  and  its  sub- 
jects, which  had,  ultimately,  a  profound  effect  on  indus- 
try. This  was  the  restriction  to  the  State  of  the  issue  of 
COINAGE.  Though  this  rule  of  the'  later  Roman  Empire 
had  survived  in  tradition,  yet,  in  fact,  many  feudal  nobles 
and  chartered  boroughs  claimed  the  right  of  private  coinage 
until  well  on  into  the  Middle  Ages;  and  it  was  not  until  the 
thirteenth  century,  that  the  State  made  a  determined  effort 
to  stamp  out  the  practice.  But  that  efforts  were  then  made, 
both  in  England  and  France,  is  clear,  as  well  as  the  fact 
that,  on  the  whole,  they  were  successful.  It  is  quite  pos- 
sible, that  a  desire  to  profit  by  the  immoral  but  alluring 
process  of  "debasing  the  coinage"  influenced  the  policy  of 
the  State;  but  it  is  tolerably  clear  to  any  one  who  reads, 
for  example,  in  the  twelfth-century  Dialogues  of  the  Ex- 
chequer, of  the  difficulties  which  confronted  the  State  reve- 
nue officials  in  the  calculation  of  the  true  value  of  a  miscel- 
laneous collection  of  coins,1  that  a  great  extension  of  the 
system  of  State  taxation  inevitably  compelled  the  reform. 
And  one  has  only  to  think  of  industry  being  conducted  to- 

1The  English  Exchequer  had  to  keep  an  elaborate  staff  of 
weighers,  testers,  fusers,  and  the  like,  to  deal  with  the  freaks 
of  bad  coinage. 


244  THE   STATE   AND   THE   NATION 

day  under  the  medieval  system  of  private  coinage,  to  real- 
ise the  economic  importance  of  the  change.  Incidentally, 
also,  the  change  was  responsible  for  the  familiar  policy  of 
the  fourteenth  and  fifteenth  centuries,  which  forbade,  un- 
der the  severest  penalties,  the  exportation  of  native  coinage 
and  the  importation  of  foreign.  For  "bad  money  tends  to 
drive  out  good." 

But  by  far  the  most  dramatic  event  of  the  later  Middle 
Ages,  from  the  standpoint  of  this  chapter,  was  the  occur- 
rence, in  the  middle  of  the  fourteenth  century,  of  the  Great 
Plague,  or  Black  Death,  which  devastated  the  whole  of 
Europe,  and  swept  away,  with  appalling  suddenness,  a 
portion  of  the  population  variously  estimated  at  from  one- 
half  to  two-thirds.  In  England,  the  visitation  was,  perhaps, 
more  fatal  even  than  elsewhere;  and  the  whole  social  system 
reeled  under  the  shock.  The  immediate  difficulty  was,  of 
course,  the  shortage  of  labour,  and  the  consequent  danger 
of  famine.  The  elaborate  MANORIAL  SYSTEM,  partly  co- 
operative and  partly  servile  (pp.  145-46),  went  by  the 
board,  after  a  desperate  attempt  to  maintain  it  which  ended 
in  the  Peasants'  Revolt  of  1381.  The  way  was  thus  prepared 
for  the  crusade  in  favour  of  "enclosures."  But,  long  before 
Thomas  Tusser  wrote  his  famous  poem  (p.  229),  serfdom 
had  practically  ceased  in  England;  and  the  former  serf, 
finding  it  more  profitable  to  put  up  his  labour  for  sale  in 
the  open  market  than  to  continue  to  work  his  little  farm 
after  half  his  fellow-farmers  had  disappeared,  had  become 
a  wage-earner,  and  the  "proletariat,"  or  landless  and  craft- 
less  mass,  had  become  an  established  fact.  Needless  to  say, 
the  governing  class,  threatened  with  bankruptcy  by  the  loss 
of  their  labour  dues,  took  strong  measures  to  avert  the  dan- 
ger, and,  making  use  of  the  new  Parliament,  in  which  they 
were  strongly  represented,  embarked  on  a  policy  of  State 
regulation  of  wages,  under  which  industry  was  carried  on, 
substantially  until  the  Industrial  Revolution  of  the  late 
eighteenth  and  early  nineteenth  centuries  produced  the 
modern  factory  system.  At  first,  the  State  attempted  di- 
rectly to  fix  the  standard  of  wages  (and,  incidentally,  of 


THE    STATE   AND    INDUSTRY      245 

hours)  by  statute;  but,  after  a  time,  the  impossibility  of 
maintaining  a  rigid  standard  in  the  face  of  harvest  fluctua- 
tions compelled  the  State  to  delegate  the  fixing  of  local 
rates,  based,  roughly,  on  the  price  of  bread,  to  the  Justices 
of  the  Peace  at  their  annual  sessions.  At  first,  also,  the 
Statutes  of  Labourers  applied  mainly  to  agriculture  and  its 
allied  industries  (weaving,  tiling,  and  the  like);  but,  with 
the  dissolution  of  most  of  the  craft  gilds  at  the  Reformation, 
their  scope  was  greatly  extended,  and  only  landowners,  mem- 
bers of  skilled  or  learned  professions,  and  those  who  had 
satisfied  the  test  of  a  rigid  apprenticeship  system,  escaped 
their  net.  All  other  persons  were  bound  to  work  for  any 
one  who  wished  to  hire  them,  at  the  standard  rate.  To  pay 
or  receive  more  was  a  criminal  offence  in  employer  or  em- 
ployed. To  entice  away  another  employer's  man  made  the 
"seducer"  liable  to  an  action  for  damages.  Employees  who 
left  their  service  during  the  year  of  hiring  could  be  pursued 
and  brought  back.  Persistent  deserters  were  punishable 
as  "vagabonds";  and  an  unwise  bracketing  of  the  punish- 
ment of  vagabonds  with  the  relief  of  the  "impotent  poor" — 
a  matter  rendered  urgent  by  the  dissolution  of  the  monas- 
teries at  the  Reformation — rendered  the  well-meaning 
Elizabethan  scheme  of  POOR  RELIEF  unpopular  and  inef- 
fective. Add  to  these,  the  fact  that,  to  recoup  themselves 
for  their  losses  in  agriculture,  the  greater  landowners  re- 
vived, with  marked  success,  the  institution  of  great  sheep- 
farms,  which  required  less  labour,  and  the  great  maritime 
discoveries  of  the  fifteenth  and  sixteenth  centuries,  with 
the  consequent  development  of  foreign  commerce  on  a  great 
scale,  and  it  is  not  difficult  to  see  how  the  social  system  of 
the  Middle  Ages,  with  its  countless  little  communal  groups 
of  manors  and  gilds,  changed  suddenly  into  a  great  indi- 
vidualist society,  divided  into  two  camps,  in  one  the  privi- 
leged and  capitalist  class,  in  the  other  the  great  unorgan- 
ised mass  of  wage-earners.  Thus  the  great  modern  indus- 
trial problems,  e.g.,  the  proper  share  of  Capital  and  Labour 
in  the  profits  of  enterprise,  the  conditions  of  work,  the  pro- 
vision for  unemployment  and  sickness  of  the  wage-earning 


246  THE    STATE   AND    THE   NATION 

class,  loomed  on  the  horizon;  though  the  survival  of  the 
small  farmer  and  entre-preneur  (the  representative  of  the 
gildsman),  and  the  continuance  on  a  considerable  scale  of 
"home  industries,"  obscured  them,  until  the  emergence  of 
capitalist  farming  in  the  middle,  and  the  appearance  of 
the  factory  system  at  the  end,  of  the  eighteenth  century, 
practically  abolished  these  medieval  survivals.  In  the  cir- 
cumstances, it  was  inevitable  that  the  State  should  be  drawn 
more  and  more  into  the  realm  of  industry. 

During  the  earlier  Tudor  period,  when  the  burgess  repre- 
sentation in  Parliament  (p.  191)  was  still,  probably,  more 
or  less  genuine,  there  seems  to  have  been  an  honest  attempt 
to  fill  the  gaps  left  by  the  disappearance  of  the  old  village 
community  and  the  gilds,  by  industrial  legislation  aimed  at 
the  protection  both  of  the  producer  or  workman  and  the 
consumer.  Several  well-known  statutes  regulating  the  til- 
ing and  weaving  industries,  the  breeding  of  cattle,  sheep, 
and  horses,  the  provision  of  cottages  for  agricultural  la- 
bourers, and  other  industrial  matters,  are  extant;  and  there 
is  no  reason  to  believe  that  they  were  not  honestly  intended 
and  worked  in  the  interests  of  the  community  as  a  whole. 
But  the  decay  of  the  old  industrial  "boroughs"  (p.  116), 
brought  about  by  the  change  of  trade  routes,  the  neglect 
to  give  representation  to  the  new  centres  of  industry 
which  rapidly  sprang  up  to  replace  these,  and  the  deliber- 
ate creation  of  new  "rotten"  boroughs  by  the  Crown  to 
secure  its  influence  in  Parliament  (p.  191),  gradually  filled 
the  borough  seats  with  a  new  type  of  member.  Either  (as 
in  the  case  of  the  new  "rotten"  boroughs)  he  was  a  petty 
Crown  official  or  "placeman,"  or,  as  in  the  case  of  the  old 
decaying  boroughs,  he  was  a  newly  enriched  merchant  who 
had  made  his  fortune  in  foreign  trade,  or  the  nominee  of  a 
neighbouring  landowner  who  had  managed,  by  the  judi- 
cious expenditure  of  money,  to  "pocket"  the  borough.  In 
either  case,  the  newcomer  would  hardly  be  an  intelligent 
and  enlightened  sympathiser  with  the  needs  of  the  wage- 
earner;  while  he  would  have  a  lively  sympathy  with  the 
policy  of  Capital.  It  is  not  surprising,  therefore,  to  find 


THE    STATE   AND    INDUSTRY      247 

that,  after  the  turmoil  of  the  Civil  War  in  the  seventeenth 
century  against  the  Crown  (in  which  the  county  members 
played  an  honourable  and  pre-eminent  part),  both  the 
county  and  the  borough  members  united  in  a  policy  which, 
though  it  could  be  speciously  represented  as  in  the  interest 
both  of  the  safety  of  the  realm  and  the  prosperity  of  the 
wage-earner,  was  marked  throughout  by  a  strongly  capital- 
istic character,  both  on  its  positive  and  its  negative  sides. 
On  the  one  side,  the  long  series  of  protectionist  statutes, 
from  the  Navigation  Laws  of  the  Commonwealth  and  Res- 
toration to  the  Corn  Laws  of  the  early  nineteenth  century, 
tended  unquestionably  to  strengthen  the  power  of  capital; 
on  the  other,  the  almost  equally  long  series  of  "Combina- 
tion Laws,"  culminating  in  the  great  statute  of  the  year 
1800,  practically  made  it  impossible  for  the  wage-earners  to 
organise  themselves,  by  treating  every  association  formed  to 
raise  wages  or  shorten  hours  of  work  as  a  criminal  "con- 
spiracy" against  the  system  set  up  by  the  Statutes  of  La- 
bourers. It  is  not  necessary  to  assume  that,  in  this  policy, 
the  capitalist  classes  were  prompted  by  conscious  injustice. 
It  is  quite  probable  that,  in  the  total  absence,  not  merely 
of  representation  but  of  voting  power,  among  the  wage- 
earners,  they  still  thought  that  the  system  of  regulated 
wages  was  sound;  and  it  may  never  have  occurred  to  them 
that,  to  justify  the  system,  a  corresponding  regulation  of 
profits  was  necessary. 

As  has  been  previously  remarked,  the  course  of  industrial 
development  on  the  Continent,  during  the  seventeenth  and 
eighteenth  centuries,  lagged  as  much  behind  the  English  as 
did  the  political;  and  it  is  impossible  to  doubt  the  con- 
nection between  the  two  facts.  In  France  and  Germany, 
the  events  of  the  seventeenth  century  produced  a  strong  de- 
velopment of  centralised  autocracy,1  which  was  accompanied 
by  an  almost  complete  stagnation  of  industrial  develop- 
ment. Everywhere  the  peasantry  remained  virtually  in  a 

*Of  course  it  should  be  carefully  remembered  that,  in  those 
centuries,  there  was  no  "Germany,"  except  as  a  geographical  ex- 
pression, and  that  many  of  the  German  States  were  very  small. 


248  THE   STATE   AND    THE   NATION 

condition  of  serfdom;  while  even  the  efforts  of  the  enlight- 
ened French  economists  of  the  eighteenth  century,  such  as 
Turgot  and  Calonne,  failed  to  overcome  the  natural  aver- 
sion of  the  French  industrialist  to  "great"  industry.  Not 
unnaturally,  the  French  Revolution  swept  away  agricul- 
tural serfdom  in  France,  and,  very  largely,  in  Germany. 
But  it  is  at  first  sight  curious,  that  one  of  the  earliest  meas- 
ures of  the  revolutionary  Republic  should  have  been  the 
dissolution  of  the  corporations,  or  metiers,  which  had  sur- 
vived the  English  gilds  by  at  least  two  centuries;  and  the 
explanation,  apart  from  the  passionate  individualism  of  the 
Revolution,  is,  probably,  to  be  found  in  the  fact,  that  the 
French  Kings  of  the  sixteenth  century,  while  carefully  pre- 
serving the  form  of  the  corporations,  had  brought  them  com- 
pletely under  State  control,  and,  finally,  made  of  them  in- 
struments of  arbitrary  and  unpopular  taxation.  In  Ger- 
many, on  the  other  hand,  there  seems  to  have  been  no  feel- 
ing against  the  Zunjte,  or  gilds,  either  on  the  part  of  the 
State  or  of  the  people;  perhaps  by  reason  of  the  stagnation 
of  industrial  development.  At  any  rate,  they  seem  to  have 
lasted  until  the  revival  of  industry,  and  the  introduction 
of  competitive  principles,  in  the  nineteenth  century. 

Meanwhile,  a  substantial  victory  had  been  won  by  the 
wage-earners  in  England  in  the  passing  of  the  Repeal  Acts 
of  1824  and  1825,  which,  for  the  first  time,  rendered  lawful 
the  existence  of  Trade  Unions,  i.e.,  organisations  of  wage- 
earners  formed  for  the  avowed  purpose  of  improving  the 
conditions  of  labour.  The  differences  between  the  two  stat- 
utes, which  appear,  at  first  sight,  to  be  almost  word  for 
word,  are  obscure  but  important.  They  may  be  studied  in 
detail  in  the  contemporary  accounts;  x  but,  in  substance, 
they  amount  to  this:  that  whereas  the  earlier  statute  of 
1824  not  only  repealed  the  long  series  of  "Combination 
Laws"  which  had  culminated  in  the  Act  of  1800  (p.  247), 
but  also  the  alleged  "common  law"  or  judicial  decisions  on 
the  subject  of  trade  conspiracies,  the  later  statute  of  1825, 

1  e.g.  in  the  Life  of  Francis  Place,  by  Graham  Wallas,  1919 
(Allen  &  Unwin). 


THE   STATE  AND   INDUSTRY      249 

which  superseded  the  Act  of  the  previous  year,  merely  re- 
pealed the  legislative  provisions  against  Trade  Unions. 
Thus,  when,  alarmed  by  the  rapidity  with  which  Trade 
Unionism  developed,1  the  Government  and  the  employers 
revived  the  ancient  doctrine  of  "criminal  conspiracy"  in 
the  case  of  "strikes,"  the  main  effect  of  the  statute  of  1824 
was  seen  to  be  merely  to  shift  the  onus  of  proof  on  to  the 
prosecution.  Doubtless  the  mere  existence  of  a  Trade 
Union  was  no  longer  an  offence  against  the  law;  but  effective 
action — e.g.,  a  "strike" — was  treated  as  a  criminal  con- 
spiracy, though  it  was  admitted  that,  since  the  repeal  of 
the  Statutes  of  Labourers,  it  was  no  offence,  criminal  or 
civil,  for  isolated  individuals  to  throw  up  their  jobs  after  due 
notice.  And  when,  by  the  Trade  Union  Acts  of  1871  and 
1876,  the  doctrine  of  "criminal  conspiracy,"  as  applied  to 
peaceful  strikes,  was  abolished,  the  employers  successfully 
appealed  to  the  yet  more  shadowy  doctrine  of  "civil  con- 
spiracy," a  doctrine  never  applied  in  practice  to  any  other 
persons  than  members  of  a  Trade  Union,2  which  held  re- 
sponsible in  damages  any  group  of  persons  who  induced 
others  to  leave  the  service  of  their  employers,  and,  finally, 
those  who  persuaded  others  not  to  enter  the  service  of  a  par- 
ticular firm.3  The  weakness  of  this  doctrine,  from  the  em- 
ployers' point  of  view,  was,  that  only  the  persons  actually 
engaged  in  the  acts  complained  of  could  be  made  liable;  and 
they,  being,  as  a  rule,  wage-earners,  could  not  pay  much. 
But  a  startling  decision  by  the  House  of  Lords  in  the  year 
190 1,4  which  held  the  large  funds  of  the  Trade  Unions  re- 
sponsible for  acts  of  "civil  conspiracy"  by  their  officials, 

1  In  fact  a  few  Trade  Unions,  carefully  disguised  as  "Friendly"1 
or   "Benefit"    Societies,   had   maintained   a   precarious  existence 
before  1824.    But  the  great  development  of  the  movement  be- 
gins  from   that  date. 

2  The  inconsistency  of  the  doctrine  is  shown  by  the  fact  that 
the  House  of  Lords,  sitting  as  a  judicial  tribunal,  refused  to 
apply  it,  in  the  year  1892,  to  a  shipping  "ring"  which  threatened  to 
boycott  all  merchants  who  patronised  its  rivals.  ("Mogul"  Case.) 

3  The   "Belfast   Butchers"   Case,   in   1901. 

4  The  "Taff  Vale"  Case. 


250  THE   STATE   AND   THE   NATION 

not  merely  extended  the  doctrine  of  agency  in  a  remark- 
able way,  but  reversed  the  whole  attitude  of  the  State 
towards  Trade  Unions,  by  treating  them,  after  long  refus- 
ing to  do  so,  as  "legal  persons"  or  corporations.  Had  the 
State,  at  the  same  time,  conferred  upon  the  Unions  the 
legal  power,  enjoyed  by  every  corporation,  of  making  and 
enforcing  contracts,  at  least  within  the  scope  of  their  ob- 
jects, there  might  have  been  something  to  say  in  support  of 
the  "Taff  Vale"  decision.  In  the  circumstances,  it  was  re- 
garded as  an  act  of  war,  and  was  treated  as  such. 

The  opportunity  of  the  Unions  came  in  1906.  The  Re- 
form Act  of  1883  had  conferred  upon  the  male  wage-earners, 
to  a  considerable  extent,  the  political  franchise;  and,  in  the 
General  Election  of  1906,  the  position  of  political  parties 
enabled  them  to  throw  the  whole  weight  of  their  political 
influence  into  the  scale,  with  decisive  effect.  One  of  the 
first  results  of  the  victory  was  the  passing  of  the  Trade 
Disputes  Act,  which  swept  away,  not  only  the  "Taff  Vale" 
decision,  but  the  whole  doctrine  of  "civil  conspiracy,"  as 
applied  to  trade  disputes.  The  individual  employer  or  em- 
ployee who  breaks  the  law  can  still  be  prosecuted  or  sued, 
according  to  the  nature  of  his  offence.  But  the  mere  fact 
that  such  an  act  is  alleged  to  have  been  done  at  the  insti- 
gation of  an  employers'  association  or  a  Trade  Union,  does 
not  make  the  association  or  Union  liable  in  damages;  while, 
at  any  rate  in  connection  with  trade  disputes  (the  only  mat- 
ter in  which  the  doctrine  was  ever  applied),  the  doctrine 
that  it  is  unlawful  for  A  and  B  to  combine  to  do  an  act 
which,  done  by  either  independently,  would  not  be  unlaw- 
ful, goes  by  the  board.  Much  nonsense,  some  clever,  some 
very  stupid,  has  been  talked  about  the  Trade  Disputes  Act; 
and  it  was,  undoubtedly,  in  the  nature  of  a  "reprisal."  But 
the  responsibility  for  the  reprisal  hardly  lies  upon  the  shoul- 
ders of  its  promoters.  It  may  be,  and  probably  is,  desir- 
able, that  the  legal  rights  and  liabilities  of  powerful  unin- 
corporated bodies  like  Trade  Unions,  Employers'  Federa- 
tions, political  "Leagues,"  and  religious  associations,  which, 
in  fact,  exercise  great  power,  should  be  carefully  regulated. 


THE   STATE   AND   INDUSTRY      251 

But  such  regulation  must  not  take  place  by  a  series  of 
sniping  attacks,  but  by  a  comprehensive  scheme  based  on 
impartial  justice. 

Before  leaving  the  subject  of  English  Labour  organisa- 
tions, one  other  recent  event  must  be  mentioned.  The  bulk 
of  the  older  English  Trade  Unions,  especially  those  of  a 
local  character,  play  the  double  role  of  a  benefit  society, 
making  provision  for  the  old  age,  sickness,  and  out-of-work 
contingencies  of  its  members,  and  an  armed  champion  of 
their  cause  against  the  alleged  invasions  of  their  rights,  or 
neglect  of  their  merits,  by  their  employers.  Both  these 
functions  involve  the  expenditure  of  funds,  sometimes  on 
a  very  large  scale;  and  it  is  obvious  that  undue  attention 
to  one  involves  risk  to  the  other,  unless  the  funds  available 
for  each  are  kept  distinct.  If  a  Union  expends  all  its 
money,  for  example,  in  an  unsuccessful  strike,  it  will  have 
none  to  expend  in  sick  pay  or  other  "benefit." 

This  was  the  point  raised  in  the  "Osborne  judgment," 
where  it  was  held  that  a  member  of  a  Trade  Union,  duly 
registered  under  the  Act  of  1871,  was  entitled  to  the  assist- 
ance of  the  Courts  in  resisting  a  compulsory  levy  upon  him 
to  provide  funds  for  political  propaganda,  with  the  alterna- 
tive of  expulsion  and  loss  of  benefits  if  he  refused  to  obey. 
The  various  decisions  of  the  Courts,  which  covered  the  pe- 
riod 1909-11,  raised  many  abstruse  technical  questions  as 
to  the  legal  position  of  Trade  Unions;  and  they  emphasise 
the  necessity  for  a  comprehensive  definition  of  Trade  Union 
status.  But  the  precise  point  in  dispute  in  the  Osborne 
Case  was  disposed  of  by  a  statute  of  the  year  1913,  which, 
in  effect,  divides  the  funds  of  an  ordinary  Trade  Union 
into  two  parts,  an  economic  and  a  political,  and  makes  lev- 
ies on  behalf  of  the  latter  optional  upon  its  members.  The 
effect  of  the  Act  was,  however,  largely  discounted  by  the 
adoption  of  the  principle  of  payment  of  salaries  to  members 
of  the  House  of  Commons;  for  the  necessity  of  finding  the 
means  of  support  for  their  representatives  in  Parliament 
had  been  one  of  the  chief  charges  upon  the  political  funds 
of  the  Unions. 


252   THE   STATE   AND   THE   NATION 

We  must  now  deal  very  briefly  with  the  subject  of  wage- 
earners'  organisations  in  other  countries,  before  going  on 
to  allude  to  other  aspects  of  industry  with  which  the  State 
has  been  called  upon  to  deal;  always  remembering,  that  this 
book  does  not  propose  to  treat  of  industrial  organisation  as 
such,1  but  only  with  the  attitude  of  the  State  towards  it. 

Apparently,  the  law  of  1791,  before  alluded  to  (p.  248), 
put  an  end  to  workers'  organisations  in  France  for  the  best 
part  of  a  century.  But,  as  the  conditions  of  modern  in- 
dustrial organisation  spread  across  the  Channel,  the  desire 
of  the  French  artisans  for  protective  organisation  gradually 
developed.  After  a  political  struggle,  into  the  details  of 
which  we  cannot  enter,  the  Waldeck- Rousseau  Law  of  1884 
definitely  legalised  the  formation  of  syndicats,  or  industrial 
associations,  which  thereupon  sprang  up  in  great  numbers. 
These  associations,  following  the  general  trend  of  French 
industry,  are  largely  local  in  character,  though  they  have 
created  organs  for  the  general  expression  of  their  aims,  such 
as  the  Confederation  Generate  du  Travail  and  the 
Federation  des  Bourses  du  Travail  now  working  in  concert. 
It  is  noteworthy,  that  the  Bourses  du  Travail,  or  Chambers 
of  Industry,  so  long  as  they  remained  purely  local,  were 
actually  subsidised  by  the  State,  through  the  municipalities; 
but  this  support  was  withdrawn  when  the  Bourses  formed 
a  national  organisation.  As  is  also  natural,  the  division 
between  employer  and  employed  being  less  sharp  in  France 
than  in  England,  the  aim  of  making  the  syndicats  producing 
as  well  as  organising  bodies  has  been  more  marked  in 
France,  and  has  given  rise  to  that  conception  of  economic 
society  known  as  "Syndicalism,"  which  aims  at  securing 
for  the  industrial  organisation  the  complete  control  of  its 
industry,  and  the  entire  extrusion  of  the  State  from  in- 
dustrial affairs,  and,  indeed,  ultimately,  its  complete  ex- 
tinction. But  this  is  a  point  which  will  be  more  conven- 
iently considered  in  a  later  chapter. 

1This  will  be  found  admirably  described  and  discussed  in  a 
little  work  by  G.  D.  M.  Cole,  entitled  The  World  of  Labour, 
1917  (Bell  &  Sons). 


THE   STATE   AND   INDUSTRY      253 

It  seems  at  first  a  little  surprising  that,  in  Germany, 
where  the  prevailing  conception  of  the  State  would  appear 
to  be  completely  hostile  to  independent  associations,  there 
should,  seemingly,  have  been  little  opposition  by  the  State 
to  the  formation  of  Gewerkschajten,  or  workers'  unions, 
which  followed  upon  the  disappearance  of  the  old  Zunjte  in 
the  middle  nineteenth  century  (p.  248),  and  which  have 
since  attained  a  high  degree  of  organisation  and  extent. 
But  the  explanation  of  the  mystery  appears  to  lie  in  the 
fact,  that  the  new  Unions,  many  of  them  conservative  and 
religious  in  character,1  have,  from  the  first,  kept  themselves 
rigidly  outside  politics,  leaving  the  political  interests  of  the 
proletariat  entirely  in  the  hands  of  the  Socialist  Party,  a 
highly  organised  body,  with  which  the  State  and  Imperial 
Governments  have  had  seriously  to  reckon.  In  Italy,  on 
the  other  hand,  the  tendency  of  the  workmen's  organisations 
to  enter  upon  politics  of  a  highly  inflammable  character, 
combined  with  difficulties  arising  from  the  different  condi- 
tions of  north  and  south,  has  prevented  them  as  yet  achiev- 
ing any  great  industrial  results.  The  growth  of  Labour 
associations  in  Sweden  is  equally  modern,  and  has  already 
met  with  one  severe  check  (in  1909) ;  but  it  would  seem 
that  the  check  was  administered,  not  by  the  State,  but  by 
a  highly  organised  Employers'  Union,  which  skilfully  chose 
a  moment  of  trade  depression  to  enforce  a  general  "lock- 
out." 2  In  the  United  States  of  America,  Trade  Unions, 
despite  their  large  numbers  of  members  and  a  high  degree 
of  organisation,  have  not,  owing  to  the  immense  "pool"  of 
alien  unorganised  labour  upon  which  the  employers  can 
draw,  threatened  to  control  the  situation,  and  have,  ap- 
parently, been  (apart  from  war  conditions)  ignored  by  the 
State,  which  has  confined  its  attention  to  regulating  physi- 
cal disturbances  caused  by  trade  disputes.  In  some,  at 
least,  of  the  self-governing  Dominions  of  the  British  Em- 

*e.g.  the  so-called  "Christian"  and  "Hirsch-Dunker"  Unions. 

*It  is  significant  that  the  demand  of  the  Unions  upon  which 
the  dispute  arose  was  for  universal  suffrage — primarily  a  purely 
political  object. 


254  THE   STATE   AND   THE  NATION 

pire,  however,  especially  in  Australia  and  New  Zealand,  the 
State  has  not  merely  recognised,  but  has  actually  encour- 
aged, the  formation  of  Trade  Unions,  and  has  even  entered 
into  active  co-operation  with  them,  in  manner  to  be  here- 
after alluded  to  (p.  256). 

It  may,  not  unnaturally,  be  asked  whether  there  has  been, 
on  the  part  of  the  State,  any  action  as  regards  employers 
corresponding  to  that  which,  as  we  have  seen,  in  England 
at  least,  until  the  year  1824,  restricted  the  association  of 
wage-earners.  In  the  Middle  Ages,  when  great  industry  was, 
practically,  non-existent,  there  were  certain  laws  about  "en- 
grossing," "regrating,"  and  "forestalling," a  which  may,  con- 
ceivably, have  had  this  object.  There  was  the  great  Stat- 
ute of  Monopolies  (p.  234) ;  and  it  is  just  possible,  that  a 
strict  interpretation  of  the  "conspiracy"  doctrine  may  have 
included  associations  of  employers  as  well  as  workmen. 
But  there  is  little  evidence,  if  any,  to  show  that  it  was  so 
interpreted.  Prosecutions  for  "lock-outs"  were  as  rare  as 
prosecutions  for  "strikes"  were  common  in  the  first  half  of 
the  nineteenth  century;  while  the  elaborate  series  of  argu- 
ments in  the  "Mogul"  Case  (p.  249,  n.  2)  failed  to  convince 
the  judges  of  the  applicability  of  the  doctrine  of  conspiracy 
to  capitalist  associations.  On  the  other  hand,  the  creation 
by  the  State  of  new  and  liquid  forms  of  capital  by  means 
of  joint-stock  companies  (pp.  230-32)  has  immensely  fa- 
cilitated the  formation  of  capitalist  associations,  which,  in 
fact,  are  now  almost  as  numerous  as  Trade  Unions  com- 
monly so  called.2  Only  in  the  United  States  of  America 
does  there  appear  to  have  been  any  definite  attempt  to  re- 
strict the  scope  of  capitalist  associations;  while  in  Ger- 
many, as  is  well  known,  the  State  has,  in  recent  years,  ac- 
tively encouraged  the  formation  of  such  bodies. 

1  "Engrossing"  =  buying  up    (more  particularly  of  "multiple" 
products)  ;  "regrating"  is  buying  cheap  and  selling  dear;  "fore- 
stalling" is    (as  its   name  implies)    buying  up  goods   on  their 
way  to  market. 

2  In  Great  Britain,  a  "Trade  Union,"  in  the  important  Trade 
Disputes  Act  of  1906,  includes  employers'  associations.    The  full 
effect  of  this  piece  of  political  strategy  remains  to  be  seen. 


THE   STATE   AND   INDUSTRY      255 

The  State  has,  in  fact,  shown  a  much  greater  disposition 
to  confer  direct  benefits  on  the  wage-earner,  than  to  allow 
him  to  redress  his  own  grievances.  Even  before  the  lower- 
ing of  the  political  franchise  had  enabled  him  to  exercise  leg- 
islative pressure,  and  in  spite  of  the  opposition  put  up  by 
the  employers  under  the  motto  of  Laissez  Faire,  the  State 
had  begun  to  pass  Factory  Acts  directed  specially  to  pre- 
vent the  exploitation  of  wage-earners'  children,  the  work- 
ing of  excessive  hours,  the  allowance  of  insanitary  condi- 
tions and  dangerous  machinery  in  factories.  It  is  not  too 
much  to  say,  that  many  of  the  wisest  of  these  restrictions 
were  often  bitterly  opposed  by  the  wage-earners  themselves; 
but  they  continued  to  be  issued,  with  ever-increasing  effect, 
until  they  culminated  in  the  Public  Health  Acts,  the  Old 
Age  Pension  Acts,  the  Education  Acts,  and  the  various 
schemes  of  National  Insurance  which  prevail  in  different 
countries.1  But,  perhaps,  the  most  interesting  and  significant 
movement  on  the  part  of  the  State  in  recent  years,  in  its  re- 
lations with  industry,  is  the  attempts  from  time  to  time 
made  by  the  State  to  effect  a  settlement  of  industrial  dis- 
putes, by  means  of  conciliation  or  compulsory  arbitration. 

At  first  sight  it  seems  wholly  impossible  for  an  industrial 
dispute,  not  involving  an  actual  breach  of  law,  to  be  settled 
by  judicial  or  quasi-judicial  methods.  There  is,  it  is  said, 
no  common  standard.  This  was  not  always  so;  and  it  is 
not  universally  known  that,  in  the  later  days  of  the  system 
set  up  by  the  Statutes  of  Labourers  (p.  245),  there  was 
actually  a  machinery  of  compulsory  arbitration  for  disputes 
too  complicated  to  be  settled  by  any  but  experts.2  With 
the  introduction  of  Laissez-Faire  principles,  all  that  ma- 
chinery disappeared;  and,  for  the  greater  part  of  a  cen- 

1  An  early  and  primitive  form  of  wage-earners'  insurance  is 
that  known  in  Great  Britain  as  "Workmen's  Compensation," 
which  makes  employers  liable  for  accidents  to  their  workmen 
arising  out  of  their  employment.  The  advantage  to  the  wage- 
earner  of  this  form  is,  that  the  whole  cost  falls  on  the  employer. 
On  the  other  hand,  it  involves  many  risks;  and  its  scope  is  nar- 
row. 

*See  the  English  statute  of  1825  (cap.  96). 


256  THE   STATE   AND   THE   NATION 

tury,  it  was  assumed  as  axiomatic,  that  an  industrial  dis- 
pute could  only  be  settled  by  industrial  war. 

The  credit  for  the  first  serious  attempt  on  the  part  of 
the  State  to  introduce  a  better  system  seems  to  belong  to 
New  Zealand,  where,  in  the  year  1894,  certain  previous 
spasmodic  efforts  received  legislative  sanction.  The  scheme 
has  a  double  object.  First,  it  compels  the  parties  to  a  dis- 
pute to  attempt  a  definite  agreement  under  the  auspices  of 
a  Conciliation  Council  representing  both  sides,  under  an 
impartial  Chairman.  If  the  efforts  of  this  body  are  success- 
ful, the  terms  agreed  to  may  be  embodied  in  an  industrial 
agreement,1  breach  of  which  entails  a  fine;  if  they  are  un- 
successful, the  dispute  is  then  referred  to  an  Arbitration 
Court,  of  a  judicial  character,  appointed  by  the  State, 
whose  award  is  final,  legally  binding,  and  enforceable  by 
penalties  upon  those  who  disregard  it.  One  apparently 
striking  feature  of  the  scheme  is,  that  it  is  only  open  to 
registered  associations  of  employers  or  workmen;  but,  as 
the  conditions  of  registration  are  easy,  this  means,  appar- 
ently, that  either  party  to  a  dispute  can  compel  arbitra- 
tion. On  the  other  hand,  compulsion  appears  to  be  only 
binding  upon  a  registered  association;  and  so  it  is  possible, 
by  cancelling  registration,  for  any  party  in  effect  to  evade 
the  penalties  of  the  Act.  The  verdict  of  a  well-informed 
critic2  is,  that  the  scheme,  which  has  been  adopted  by  at 
least  two  other  Australian  States,3  has  had  considerable 

1  Incidentally,  the  award  may  prescribe  a  minimum  wage. 

8  See  Cole,  The  World  of  Labour,  pp.  292,  299. 

8  The  South  Australian  Act  does  not  require  initiation  of  pro- 
ceedings by  a  "registered  association,"  but  allows  them  to  be 
commenced  by  any  twenty  employers  or  employees  in  the  same 
industry.  On  the  other  hand,  it  absolutely  forbids,  under  severe 
penalties,  any  "strike"  or  "lock-out";  as  does  the  Commonwealth 
legislation,  instituted  in  1904  to  deal  with  industrial  disputes  ex- 
tending over  more  than  one  State  of  the  Commonwealth.  But 
the  most  striking  feature,  perhaps,  of  the  Commonwealth  legisla- 
tion, is  that  which  empowers  the  Arbitration  Court  to  give  a 
preference,  both  in  claim  for  employment  and  in  the  rate  of 
wages,  to  members  of  "organisations" — i.e.  Trade  Unions. 


THE   STATE   AND    INDUSTRY      257 

effect  in  improving  the  conditions  of  notoriously  underpaid 
industries,  but  that  it  fails  to  attract  support  from  workers 
who,  without  being  notoriously  ill-treated,  seek  to  better 
their  conditions.  Obviously  the  difficulty  is  to  find  a  com- 
mon standard;  and  the  tendency  has  been  for  the  Arbi- 
tration Court  to  adopt  as  its  guide  the  practice  of  the  best 
employers,  and  to  turn  that  into  a  rule — a  plan  which  is 
safe  enough  as  a  basis  of  legislation,  but  not  satisfactory  as 
a  basis  of  reform. 

A  somewhat  less  ambitious  scheme  is  that  known  as 
"Compulsory  Conciliation,"  which  is  said  to  have  orig- 
inated in  Canada  in  the  year  1900,  and  to  have  extended 
to  the  United  States  and  to  South  Africa.  It  seems  to  be 
mainly  confined  to  "public  services,"  such  as  railways;  * 
and  it  aims  only  at  compelling  the  parties  to  a  dispute  to 
suspend  hostile  operations  ("strikes"  and  "lock-outs")  un- 
til the  dispute  has  been  investigated  by  a  Board  representa- 
tive of  both  parties,  though  usually  nominated  by  the  State 
and  presided  over  by  a  direct  representative  of  the 
State.  When  this  body  has  issued  its  award,  it  is  still 
open  to  either  or  both  of  the  parties  to  refuse  it,  and  re- 
sort to  industrial  war;  but  it  is  evidently  hoped  by  the  ad- 
vocates of  the  scheme,  that  such  an  award  will  carry  with 
it  a  weight  of  public  opinion  which  will  compel  the  par- 
ties to  accept  it. 

A  third  variation  of  the  movement  we  are  describing  is 
that  known  as  the  "Wages  Board"  system,  which  is  spe- 
cially connected  in  origin  with  the  State  of  Victoria  (Aus- 
tralia), but  has,  to  a  limited  extent,  been  applied  in  Eng- 
land.2 It  aims,  not  directly  at  the  prevention  of  industrial 
disputes,  but  at  the  fixing  of  a  rate  of  wages  and  hours  be- 
low which  it  is  illegal  for  any  employer  in  the  trade  to  fall. 
Again  the  difficulty  is  the  standard.  Where  conditions  of 

1  Of  course,  the  railways  of  the  U.  S.  and  Canada  are  not 
strictly  public  services,  because  they  are  not  worked  by  the  State. 

3  By  the  Trade  Boards  Act  of  1909.  The  State  is  directly  rep- 
resented on  the  Trade  Boards,  which  have  power  to  fix  a 
minimum  wage. 


258  THE   STATE   AND    THE   NATION 

labour  are  notoriously  bad,  and  the  exposure  of  them  cre- 
ates a  public  scandal,  the  system  has  been  effective  in  rais- 
ing wages;  even  though  there  is  nothing  in  it  to  prevent 
an  employer,  save  a  consideration  of  his  business  interests, 
closing  down  his  works.  But,  at  least  in  some  cases,  the 
Boards  are  forbidden  by  statute  to  fix  the  minimum  rate 
above  that  paid  by  the  best  employers  in  the  trade;  so  that, 
in  these  cases,  the  effect,  though  by  no  means  negligible, 
is,  practically,  to  extend  a  particular  agreement,  or  group 
of  agreements,  over  the  whole  trade. 

The  great  question,  therefore:  Whether  it  is  desirable,  in 
the  interests  of  the  community,  to  allow  the  parties  to  a 
great  industrial  struggle  to  carry  on  their  warfare  by  the 
means  allowed  to  individuals  in  bargaining  for  their  indi- 
vidual dealings — for  this  is  all  that  "strikes"  and  "lock- 
outs," unaccompanied  by  fraud  or  violence,  really  amount 
to — does  not  seem  yet  to  have  been  settled  by  the  State. 
And  this  is,  obviously,  because  no  solution  of  the  question 
has  yet  been  arrived  at  by  public  opinion,  which,  at  any  rate 
in  democratically-governed  countries,  decides  the  policy  of 
the  State.  On  the  whole,  there  is  a  general  tendency  to 
answer  the  question  in  the  negative;  because  it  is  felt  that 
such  extended  warfare  is  a  palpable  danger  to  the  com- 
munity. But  the  tendency  is  not  decisive;  because  public 
opinion  has  formed  no  definite  views  upon  industrial  jus- 
tice. The  great  majority  of  men  and  women  are  inclined 
to  accept  as  inevitable  the  conditions  which  history  has  up 
to  now  produced;  but  there  is  growing  a  group  of  power- 
ful thinkers  who  see  the  fallacy  of  assuming  that  any  stage 
of  evolution  is  final,  and  who  come  forward  with  proposals 
for  fundamental  changes.  Some  allusion  to  these,  as  they 
involve  action  by  the  State,  will  be  briefly  made  in  the 
concluding  chapter  of  this  book.  But  we  have  first  to  say 
something  as  to  the  different  forms  which  the  organisation 
of  the  State  has,  at  different  times,  assumed. 


CHAPTER  XVII 

KINDS  OF  STATES 

IN  examining  the  types  of  political  organisation  at  present 
existing  in  the  world,  the  student  must  beware  of  the  dan- 
ger of  catch-words.  No  aspect  of  political  science  is  fuller 
of  language  survivals,  which  have  not  only  lost  their  orig- 
inal meanings,  but  are  positively  misleading  when  applied 
to  modern  institutions.  If,  therefore,  this  chapter  ap- 
pears to  deal  largely  with  discussion  of  words,  there  is  a 
reason. 

One  other  caution  may  be  advisable.  In  this  chapter,  we 
deal  with  different  TYPES  of  State  organisation.  We  shall 
distinguish  between  federal  and  unitary,  "flexible"  and 
"rigid,"  "common  law"  and  "prerogative"  Constitutions, 
and  so  on;  and  shall,  naturally,  give  frequent  examples 
of  States  adopting  each  type.  But  it  must  not  be  as- 
sumed that  these  types  run  parallel,  i.e.,  that  each  State 
will  fall  exclusively  under  one  or  the  other  list  of  contrasts. 
On  the  contrary,  the  crossing  of  types  is  almost  universal; 
and  the  result  shows  the  extraordinary  varieties  which 
political  life  is  capable  of  producing.  Thus,  to  take  exam- 
ples at  haphazard,  France  has  a  written  Constitution,  is 
"unitary"  (p.  266)  in  character,  and  has  an  elected  Presi- 
dent and  a  Parliamentary  Executive  (pp.  268-70).  Hol- 
land has  a  written  Constitution  and  a  Parliamentary  Execu- 
tive; but  her  Constitution  is  federal,  and  the  headship  of 
her  State  is  hereditary.  America  is  federal  and  has  a  writ- 
ten Constitution;  but  she  has  an  elected  President  and  a 
fixed  Executive.  In  fact,  of  all  the  "types"  that  we  shall 
examine,  only  two  seem  to  be  inevitably  connected;  a  fed- 
eral Constitution  and  a  written  Constitution  are  almost 

259 


260  THE   STATE   AND    THE   NATION 

inseparable.  But,  after  all,  this  does  not  mean  much;  for 
there  are  now  very  few  first-class  States  which  have  not 
written  Constitutions. 

Generations  of  students  nourished  on  Aristotle's  philoso- 
phy, pure  or  diluted,  have  been  accustomed  to  think  of  all 
possible  State  forms  as  necessarily  falling  under  one  of 
his  three  classes — Monarchies,  Aristocracies,  and  Democra- 
cies. This  famous  classification  is,  of  course,  based  on  the 
numerical  relationship  of  the  governing  person  or  body  to 
the  rest  of  the  "free"  members  of  the  community.  Where 
the  government  is  in  the  hands  of  one  person,  the  State  is 
a  Monarchy;  where  it  is  in  the  hands  of  a  select  few,  it 
is  an  Aristocracy;  where  all  the  free  (male)  citizens  have 
a  voice  in  the  government,  there  is  a  Democracy.  Such 
was  the  simple  reasoning  of  Aristotle;  and  it  may  have  fit- 
ted the  States  of  which  he  had  knowledge.  But  it  is  worth- 
less in  our  day,  when  a  "Monarchy"  may,  in  common 
speech,  include  a  personal  autocracy  like  that  of  Freder- 
ick the  Great,  a  bureaucratic  autocracy  such  as  that  which 
ruled  Russia  in  the  name  of  the  late  Tsar,  a  caste  autoc- 
racy like  that  of  the  German  Kaiser,  and  a  popular  ruler- 
ship  like  that  of  Italy;  and  when  a  "Democracy"  will  cover 
such  widely  different  types  as  the  two  Republics  of  France 
and  the  United  States  of  America.  The  once  intense  in- 
terest in  these  ancient  terms  has  long  worn  thin;  though 
the  terms  themselves,  as  has  been  urged,  still  exercise  un- 
conscious influence.  It  would  be  idle,  therefore,  to  treat 
this  classification  as  of  serious  importance  at  the  present 
day.  Save  for  a  few  doctrinaires,  no  one  really  now  cares 
very  much  by  which  name  a  State  is  called. 

We  touch  a  more  practical  point,  not  remotely  con- 
nected with  Aristotle's  classification,  if  we  try  to  distin- 
guish between  SOVEREIGN  and  NON-SOVEREIGN  States. 
The  term  "sovereignty,"  originally  meaning  little  more  than 
"supremacy"  or  eminence,1  came,  owing  to  the  political 
ferment  caused  by  the  religious  Reformation  of  the  six- 

1  The  writer  has  found  the  Heads  of  Cambridge  colleges  de- 
scribed as  "sovereigns"  in  a  fifteenth-century  law  report. 


KINDS    OF    STATES  261 

teenth  century,  to  have  a  peculiar  and  somewhat  arti- 
ficial significance.  In  the  well-known  definition  of  Gro- 
tius,  who  used  the  idea  largely  to  build  up  his  doctrine 
of  International  Law,  it  has  two  aspects.  It  implies  that 
the  Power  of  which  it  is  used  neither  submits  legally  to 
the  interference  of  any  other  Power,  nor  allows  its  own 
subjects  to  question  its  omnipotence.  As  a  matter  of  fact, 
few  ruling  persons  or  bodies  have,  at  any  rate  in  modern 
times,  attained  such  a  position;  as  a  matter  of  law,  a  cer- 
tain number  of  ruling  persons  or  bodies  claim  it.  Others, 
while  admitting  external  control,  claim  internal  omnipo- 
tence. Others  again,  while  admitting  that  they  are  re- 
strained by  constitutional  bonds  in  dealing  with  their  own 
subjects,  claim  complete  independence  as  regards  external 
authority.  The  classification,  though,  as  we  have  said,  re- 
lated to  Aristotle's  famous  analysis,  cuts  across  it.  Thus, 
a  democratic  State,  like  the  American  Republic,  may  be 
independent  in  all  external  matters,  whilst  exercising  legally 
restricted  powers  over  its  own  citizens;  another  demo- 
cratic State,  the  British  Empire,  likewise  acknowledging 
no  external  authority,  also  claims  to  exercise,  through  the 
Imperial  Parliament,  unfettered  control  over  its  citizens 
and  subjects.  The  subject  of  "sovereignty"  is  so  interest- 
ing, and  so  practically  important  for  the  future,  that  a 
little  further  attention  may  well  be  given  here  to  its  in- 
fluence. 

Nothing  could,  at  first  sight,  appear  more  hopeless  as  a 
basis  of  International  Law,  than  the  theory  of  external 
sovereignty.  Law  implies  submission  to  authority;  and 
the  doctrine,  that  the  world  is  composed  of  sovereign 
States,  looks  like  an  open  recognition  of  anarchy  in  inter- 
national affairs.  Grotius,  the  father  of  modern  International 
Law,1  was  driven  to  it  by  sheer  necessity.  As  a  practical 
statesman,  he  was  well  aware,  that  the  old  order,  which 
recognised  a  vague  international  authority  in  the  over- 
lordship  of  Pope  and  Holy  Roman  Emperor,  a  far-off  sur- 

1  Grotius'  famous  book,  De  Jure  Belli  et  Pads,  was  published 
in  1625. 


262  THE   STATE  AND   THE  NATION 

vival  of  the  ancient  Empire  of  Rome,  had  been  shattered 
for  ever  by  the  Reformation — that  at  least  the  Protestant 
States  would  no  longer  tolerate  any  active  interference  in 
their  concerns  by  the  Papal  See.  Despairing  (as  well  he 
might)  of  finding  any  definite  human  authority  to  which 
States  would  bow,  he  took  the  bold  course  of  admitting 
the  complete  international  independence  of  States,  and,  at 
the  same  time,  of  urging  them  to  submit  to  the  rules  of  the 
"Law  of  Nature."  The  very  vagueness  of  this  famous 
phrase  recommended  it  as  an  ideal;  and  Grotius'  work  is 
chiefly  occupied  with  an  attempt  to  expound  its  meaning. 
Describing  it  briefly  as  "the  dictate  of  right  reason,"  he 
based  his  exposition  of  its  principles,  in  substance,  on  the 
practice  of  classical  antiquity,  as  exemplified  in  Greek  and 
Roman  history;  and,  owing  to  the  popularity  in  his  day 
of  the  revived  study  of  ancient  history,  with  astonishing 
success.  The  Wars  of  Religion  had  shocked  the  conscience 
of  the  world  by  their  savageness,  and  the  suffering  which 
it  had  produced;  and,  everywhere  in  Western  Europe, 
Princes  and  Generals  grasped  at  the  solution  offered  by  the 
Dutch  writer.  Successive  authors  developed  his  ideas — 
some  on  the  theoretical  side,  by  logical  expansion  of  his 
principles,  others  on  the  political  side,  by  gradual  agree- 
ment, through  treaties  and  conferences,  as  to  what  prac- 
tices were  permissible  in  the  intercourse  of  States.  A 
whole  new  chapter  was  added  by  the  development  of  the 
rules  of  Neutrality,  an  attitude  barely  imagined  in  Grotius' 
day.  Next  to  the  great  religious  writings  of  the  world — 
the  Bible,  the  Koran,  the  Sacred  Books  of  the  East — the 
work  of  Grotius  stands  pre-eminent  among  literary  works 
which  have  swayed  the  destinies  of  mankind. 

Nevertheless,  the  theory  of  Grotius  had  one  obvious 
weakness.  It  made  no  provision  for  the  appearance  of  a 
Power,  strong  enough,  and  immoral  enough,  to  defy  the 
opinion  of  the  civilised  world  and  the  sacredness  of  treaties, 
and  to  treat  the  doctrine  of  external  sovereignty  as  a  doc- 
trine of  anarchy.  A  time  came,  as  we  all  know,  when  such 
a  Power  appeared;  and,  for  a  time  at  least,  the  temple 


KINDS   OF    STATES  263 

which  Grotius  and  his  followers  had  built  with  laborious 
care,  seemed  to  lie  in  ruins.  Of  the  proposals  for  its  re- 
building, we  must  say  a  word  in  the  final  chapter  of  this 
book;  but,  before  leaving  the  doctrine  of  external  sover- 
eignty as  an  apparent  failure,  we  ought  in  fairness  to  point 
out  that  it  has,  at  least  in  theory,  contributed  one  very 
important  principle  to  the  doctrine  of  international  affairs, 
viz.,  the  equality  before  the  law  of  all  independent  States, 
however  they  may  differ  in  size  and  power.  Difficult  as  it 
may  be  to  apply  this  principle  in  practice,  it  has  at  least 
stood  as  a  constant  protest  against  the  anarchical  doctrine 
that  Might  is  Right. 

The  other  aspect  of  Grotius'  doctrine,  viz.,  internal 
sovereignty,  used  by  him  chiefly  to  enforce  the  very  useful 
lesson  that  one  State  has  no  right  to  interfere  with  the 
internal  affairs  of  another  State,  became  also,  in  the  hands 
of  other  exponents,  the  basis  of  a  doctrine  of  government. 
One  of  the  most  conspicuous  of  these  exponents  was  the 
English  philosopher  Thomas  Hobbes  ("of  Malmesbury"). 
It  was  easy  for  the  average  man  to  grasp  the  theory,  that 
an  autocratic  monarch  could  recognise  no  legal  limitations 
on  his  authority.  But  Hobbes  went  further,  and  claimed 
that  the  same  rule  applied  to  all  governments,  whatever 
their  form.  Here,  again,  the  simplicity  of  the  doctrine,  and 
its  usefulness  in  discouraging  "rebellion,"  made  its  reception 
favourable,  at  least  amongst  all  who  wielded,  or  aspired 
to  wield,  the  powers  of  government.  And  it  happened  to 
fit  very  well  the  circumstances  of  the  time  and  country  in 
which  Hobbes  lived.1  It  was  favoured  alike  by  the  sup- 
porters of  Divine  Right,  who  preached  "non-resistance," 
and  by  the  Parliamentarians,  who  believed  in  the  omnipo- 
tence of  Parliament.  The  latter  were  the  more  in  accord 
with  the  facts  of  history.  For,  while  there  had,  for  cen- 
turies past,  been,  in  England,  legal  limitations  on  the  power 
of  the  King,  there  had  never  been  (except  in  a  vague  and 
long-exploded  judicial  theory)  any  legal  limitations  upon 

1  Hobbes'  great  work,  Leviathan,  or  the  Matter,  Form,  and 
Power  of  a  Commonwealth,  was  published  in  1651. 


264  THE   STATE   AND   THE   NATION 

the  power  of  the  King  in  Parliament.  Thus,  for  about 
two  hundred  years,  the  doctrine  of  internal  sovereignty  be- 
came the  accepted  doctrine  in  that  British  Empire  into 
which  England  gradually  expanded,  in  spite  of  the  fact, 
that  an  unwise  attempt  to  put  it  into  practice  led  to  the 
severance  between  the  mother-country  and  her  American 
colonies,  in  the  latter  part  of  the  eighteenth  century. 

It  was,  however,  natural  and  inevitable,  that  the  blow 
dealt  against  internal  sovereignty  in  practice  by  the  Amer- 
ican colonies,  should  react  against  the  theory  itself.  The 
Americans  had  found  that  a  sovereign  Parliament  was  no 
more  to  be  trusted  than  a  sovereign  King.  They  deter- 
mined not  to  recognise  the  principle  in  America.  For  not 
only  did  they  strictly  limit  the  power  of  the  President  and 
the  various  State  Governors,  but  they  even  limited  the 
powers  of  the  President  and  Congress  combined,  as  well 
as  the  combined  powers  of  the  several  Governors  and  legis- 
latures of  the  States  of  the  Union.  Thus,  though  the  sev- 
eral States  of  the  Union  insisted  on  describing  themselves 
as  "sovereign,"  they  are,  evidently,  not  sovereign  in  the 
sense  of  Grotius  and  Hobbes,  either  as  regards  their  ex- 
ternal or  their  internal  affairs.  And,  when  they  went  fur- 
ther, and  committed  their  political  future  to  a  system  in 
which  such  power  as  was  tolerated  was  rigidly  divided  be- 
tween the  Federal  Government  at  Washington  and  the 
several  States  Governments,  the  doctrine  of  internal  sover- 
eignty became  in  America,  even  if  men  continued  to  pay 
lip-service  to  it,  a  mere  theory.  The  same  result  had  hap- 
pened in  the  earlier  federations  of  Switzerland  and  Hol- 
land, which  may  have  been  one  reason  why  Grotius,  a 
Dutchman,  laid  little  stress  on  internal  sovereignty. 

But,  though  the  adoption  of  a  federal  system  makes  the 
most  obvious  breach  in  the  doctrine  of  internal  sovereignty, 
it  must  not  be  supposed  that  the  breach  did  not  also  come 
in  "unitary"  States,  i.e.  States  organised  under  a  single 
central  government.  And  the  cause  of  the  change  is  in- 
teresting; for  it  is  one  of  those  cases  in  which  the  instru- 
ments employed  affect  the  character  of  the  work.  The 


KINDS   OF   STATES  265 

French  Revolution  itself,  the  great  event  which  cast  mod- 
ern Continental  Europe  into  the  crucible,  was  passionately 
devoted  to  "sovereignty" — the  "sovereignty  of  the  peo- 
ple." But  the  practice  of  adopting  written  Constitutions, 
to  which  it  gave  rise,  was  fatal  to  the  legal  theory  of  in- 
ternal sovereignty.1  For,  when  it  came  to  actual  discus- 
sion of  the  terms  of  a  Constitution,  no  "Constituent  As- 
sembly," or  Constitution-making  body,  ever  could  bring 
itself  to  grant  unlimited  power  to  the  government  which 
it  set  up;  and  thus,  in  effect,  all  the  written  Constitutions 
of  Europe,  with  the  possible  exception  of  the  Italian  Statuto, 
in  express  terms  limit  the  powers  of  the  Diet,  Congress, 
Assembly,  or  other  chief  governing  body  of  the  State.  And 
though,  in  form,  the  theory  of  the  sovereignty  of  the  Im- 
perial Parliament  still  survives  in  the  British  Empire,  it 
disappeared  in  substance  with  the  grant  of  Responsible 
Government  to  the  Dominions,  in  the  latter  half  of  the 
nineteenth  century. 

In  view  of  the  rapid  growth  of  FEDERALISM  during  the 
last  century  and  a  half,  and  of  the  hopes  which  are  enter- 
tained for  it  in  the  future,  it  may  be  desirable  to  say  a  few 
words  as  to  its  character.  It  has  been  well  described  by  a 
distinguished  writer,2  as  the  kind  of  Constitution  which  re- 
sults when  several  hitherto  independent  States  desire  union 
but  not  unity.  Though  this  epigram  hardly  takes  into 
account  the  instances,  few  in  number,  in  which  federalism 
has  been  imposed  from  above,  it  admirably  indicates  the 
essential  feature  of  the  typical  federal  State,  viz.,  that 
it  is  founded,  not  on  force,  but  on  agreement.  It  is,  prac- 
tically, impossible  for  such  a  delicate  mechanism  as  a  fed- 
eral Constitution  to  be  brought  into  existence,  still  less  to 
be  worked,  without  the  willing  co-operation  of  the  several 
units  affected  by  it.  It  is  not  too  much  to  say,  that  even 

1  Oddly  enough,  England  led  the  way  with  a  written  Consti- 
tution,  in   the   various   attempts   of   the    Commonwealth.    But 
these  disappeared  at  the  Restoration. 

2  Professor   Dicey,   in  his  Introduction  to   the  Study  of  the 
Constitution  (Macmillan),  6th  ed.,  p.  137. 


266  THE   STATE   AND   THE   NATION 

the  victory  of  the  Northern  States  in  the  American  Civil 
War  could  not  have  preserved  the  Union,  unless  the  South 
had  consented  to  bury  its  grievances  and  join  heartily  in 
upholding  the  Republic.  The  lamentable  treatment  of  the 
conquered  provinces  of  Alsace-Lorraine  by  Germany  after 
the  war  of  1870-1,  was  a  cynical  admission  of  the  same 
truth.  Even  the  anomalous  Federal  Empire  of  Germany 
was  founded  on  the  agreement — in  some  cases,  doubtless, 
reluctant — of  the  hitherto  independent  German  States;  but 
Alsace-Lorraine  was  no  part  of  it,1  though  a  grudging  ad- 
mission of  a  few  representatives  of  the  district  to  the 
Reichstag  was  allowed. 

It  is  also  of  the  essence  of  a  federal  Constitution,  that 
the  spheres  of  activity  belonging  respectively  to  the  central 
(or  federal)  government  and  the  governments  of  the  unit- 
ing States  shall  be  clearly  marked  out  by  the  Constitution, 
and  that  the  boundaries  laid  down  shall  be  such  that  neither 
party  can  encroach  upon  the  sphere  of  the  other.  If  the 
central  government  can  alter  the  arrangements  at  its  pleas- 
ure, there  is  no  true  Federation,  but  only  a  "unitary"  State 
with  a  highly-developed  system  of  local  government  (pp. 
271-72).  In  theory,  the  British  Empire  is  such  a  unitary 
State;  in  substance,  it  is  a  Federal  Empire,  so  far  as  the 
self-governing  Dominions  are  concerned,  for  no  attempt 
on  the  part  of  the  nominally  sovereign  Parliament  to  alter 
the  powers  of  government  of  the  Dominions,  without  their 
own  consent,  would  be  tolerated.  One  striking  recent  ex- 
ample of  the  spread  of  federalism,  is  the  way  in  which 
smaller  federations  have  grown  up  within  the  greater  fed- 
eration of  the  British  Empire.  For  the  Dominions  of  Can- 
ada and  South  Africa,  and  the  Commonwealth  of  Australia 
are  true  federations;  though  again,  in  form,  the  Union  of 
South  Africa  is  a  unitary  State,  with  provinces  technically 
subordinate  to  it.  It  is  significant,  that  nowhere  has  the 
system  which  presupposes  government  by  consent  devel- 
oped so  freely  as  in  the  British  Empire. 

1  Alsace-Lorraine  was  made  a  Reichsland,  not  a  Reichsstaat,  i.e. 
a  country  governed  by  the  Empire,  not  a  member  of  the  Empire. 


KINDS   OF   STATES  267 

Naturally,  the  precise  proportion  of  power  accorded  in 
the  federal  Constitution  to  the  central  and  the  "State" 
governments  varies  according  to  the  circumstances  of  each 
case.  Where  the  federal  group  claims,  as  a  whole,  exter- 
nal sovereignty  (p.  261),  the  exercise  of  that  sovereignty 
is  invariably  entrusted  to  the  central  government;  but, 
so  far  as  internal  affairs  are  concerned,  the  balance  varies 
almost  with  each  case.  Two  types  are,  however,  obvious. 
In  the  one,  certain  specified  powers  are  entrusted  to  the 
central  government;  while  all  else  remains,  subject,  of 
course,  to  their  own  Constitutions,  to  the  governments  of 
the  various  units,  usually  (but  not  invariably)  known  as 
"States."  Of  such  federations,  the  American  Republic  is 
the  typical  example;  while  Switzerland  and  the  Australian 
Commonwealth  are  also  of  this  type.  In  the  other  type 
of  federal  Constitution,  specific  powers  are  conferred  on 
the  governments  of  the  different  units,  or  "provinces"; 
while  the  "residuary"  power  belongs  to  the  central  govern- 
ment, which,  not  infrequently,  exercises  a  veto  over  the 
acts  of  the  provincial  governments.  Examples  are  Hol- 
land, the  Dominion  of  Canada,  and  the  Union  of  South 
Africa.  The  type  is  usually,  but  not  always,  determined 
by  the  historical  accident  of  priority  in  age  of  the  respec- 
tive authorities.  There  is  a  tendency  to  assume  that  fed- 
eral States  are  necessarily  Republic  in  form,  i.e.,  that  their 
executive  Heads  are  elective;  but  that  is  manifestly  un- 
true, as  witness  the  late  German  Empire,  Holland,  and  the 
British  Empire  itself. 

A  federal  government  almost  necessarily  implies  a  writ- 
ten Constitution,  and  a  Supreme  Court,  independent  of  the 
federal  executive  and  legislature,  especially  charged  with 
the  duty  of  interpreting  the  Constitution.  These  two  fea- 
tures would,  one  would  naturally  suppose,  guarantee  the 
predominance  of  law  (p.  272)  in  all  its  actions,  at  least  so 
far  as  internal  affairs  are  concerned;  and  that,  undoubtedly, 
should  be  one  of  the  first  aims  of  federal  arrangements. 
Strangely  enough,  this  is  not  always  so.  In  spite  of  its 
written  Constitution  and  its  Federal  Court,  the  late  Ger- 


268  THE   STATE   AND   THE  NATION 

man  Empire  did  not  recognise  the  Rule  of  Law  (p.  273), 
except  in  the  paradoxical  sense  in  which  it  may  be  said 
that  the  Rule  of  Law  is  expressly  excluded  by  the  Consti- 
tution itself.  On  the  other  hand,  the  British  Empire,  with 
no  written  Constitution,  and  only  a  quasi-independent  Su- 
preme Court  (the  Judicial  Committee),1  is  the  parent  and 
shining  exemplar  of  the  Rule  of  Law. 

Finally,  before  leaving  the  subject  of  federation,  we  may 
point  out  that,  although,  by  every  true  federal  Constitu- 
tion, interference  by  the  central  government  in  the  in- 
ternal affairs  of  the  member  States  is  prohibited,  yet,  in 
practically  all  cases,  the  central  government  has  power  to 
enforce  its  legitimate  orders  and  decisions  throughout  the 
federal  territory,  by  its  own  Courts  and  executive  officials. 
This  power  has  been  found  essential  to  the  stability  of 
federal  institutions;  and  it  is  to  be  seen  even  in  the  Con- 
stitution of  the  United  States,  where  the  autonomy  of  the 
several  States  is  jealously  guarded.  In  fact,  a  Government 
which  has  not  this  power  would  hardly  rank  as  a  federation 
at  all;  though  it  might  claim  to  be  a  CONFEDERATION,  a 
type  of  union  which  has  practically  ceased  to  exist,  and 
which  has  been  condemned  as  a  political  failure,  except, 
perhaps,  by  way  of  temporary  expedient. 

Another  first-class  distinction  of  type  in  modern  States 
divides  them  into  those  which  have  PARLIAMENTARY  and 
those  which  have  FIXED  EXECUTIVES.  Practically  all  the 
great  States  have  now  representative  or  Parliamentary 
LEGISLATURES;  but  whereas,  in  some,  the  chief  executive 
officials  are  appointed  at  pleasure  by  the  Head  of  the 
State,  or  elected  for  definite  periods,  independently  of  the 
approval  of  the  legislatures,  in  others,  these  officials, 
though  nominally  appointed  and  dismissed  by  the  Head 
of  the  State,  can,  practically  speaking,  only  hope  to  hold 

*It  need  hardly  be  said  that,  morally  speaking,  the  Judicial 
Committee  amply  maintains  the  reputation  of  the  British  Bench 
for  independence  and  impartiality.  But,  legally  speaking,  its 
composition  could  be  entirely  changed,  by  the  legislative,  and 
even  by  the  executive,  act  of  the  central  Government. 


KINDS   OF   STATES  269 

their  offices  by  the  continued  support  of  the  legislature. 
This  last  type  of  Government  is  the  peculiar  invention  of 
England,  which  adopted  it,  in  the  early  eighteenth  century, 
as  a  compromise  between  the  claim  of  the  King  to  appoint 
and  dismiss  his  Ministers  as  he  pleased,  and  the  claim  of 
the  House  of  Commons  (actually  realised  for  a  short  while 
during  the  Civil  War)  to  appoint  directly  the  Ministers  of 
the  Crown.  In  England,  this  compromise  was  based 
on  a  strong  party  organisation  which  developed  naturally 
out  of  the  Revolution,  and  thus  attained  a  considerable 
stability;  one  party  assuming  responsibility  for  a  definite 
line  of  policy,  while  the  other  systematically  criticised  it, 
until  it  persuaded  the  electorate  to  return  a  majority  of 
members  favourable  to  its  (the  Opposition's)  views,  when 
the  latter,  in  its  turn,  assumed  the  responsibilities  of  gov- 
ernment, and  drove  its  former  adversaries  into  opposition. 
In  spite  of  its  obvious  drawbacks,  this  system  has  worked 
well  in  British  politics,  and  has  been  extended  from  the 
United  Kingdom  to  the  Dominions,  where,  under  the  name 
of  "Responsible  Government,"  it  has  become  extremely 
popular.  It  has  also  been  adopted,  though  with  less  suc- 
cess, in  many  other  countries,  e.g.,  France,  Italy,  Spain, 
Holland,  and  Scandinavia,  and  even  Japan;  but,  in  these 
countries,  the  absence  of  clearly  defined  party  lines  has 
prevented  it  attaining  the  stability  which  it  has  shown  in 
Great  Britain.  But,  though  Responsible  Government 
claims  to  be  a  means  of  guiding  policy  by  public  opinion, 
it  must  not  be  supposed  that  its  only  alternative  is  "autoc- 
racy," i.e.,  government  according  to  the  personal  will  of  a 
single  ruler  or  privileged  caste.  Two  of  the  most  truly 
democratic  States  in  the  world,  viz.,  the  Republic  of  the 
United  States  of  America,  and  the  Republic  of  Switzer- 
land, have  never  adopted  it.  In  the  former  case,  the 
electors  directly  choose  the  Head  of  the  Executive  for  a 
fixed  period,  leaving  him  to  appoint  and  dismiss  his  col- 
leagues in  office;  in  the  latter,  the  chief  officials,  as  well  as 
the  President,  are  elected,  for  fixed  periods  (the  President 
only  for  one  year),  by  the  Federal  Assembly  of  the  two 


270  THE   STATE   AND   THE  NATION 

Houses  of  the  legislature,  sitting  jointly.  Thus  it  is  clear, 
that  the  Parliamentary  Executive  is  not  the  only  means 
of  realising  national  self-government;  all  that  can  be  said 
is,  that  it  is,  apparently,  incompatible  with  the  existence 
of  autocracy  in  the  sense  above  indicated.  But  the  claim 
sometimes  put  forward,  that  a  Parliamentary  Executive 
cannot  be  worked  in  a  federal  system,  is  manifestly  un- 
sound; as  the  examples  of  Canada  and  Australia  show. 

Yet  another  important  distinction  of  type  is  that  which 
separates  the  so-called  "rigid"  from  the  "flexible"  Con- 
stitution. In  the  latter  type,  the  Constitution  itself  can  be 
amended,  by  the  same  body,  and  in  the  same  manner,  as 
any  other  law.  In  the  former,  special  machinery,  often  of 
a  very  complicated  kind,  is  required  for  the  alteration  of  the 
Constitution  itself.  In  spite  of  the  fact  that  the  distinction 
places  on  one  side  only  the  British  Empire  and  the  King- 
dom of  Italy  (with,  apparently,  the  late  German  Empire), 1 
and,  on  the  other,  all  the  remaining  States  of  the  civilised 
world,  it  is  not  without  importance;  for  the  "flexible" 
Constitution  of  the  British  Empire  has  certainly  somewhat 
to  its  credit,  and,  if  it  has  undergone  great  changes,  has 
not  always  changed  for  the  worse.  The  danger  of  the 
British  type  is,  that  important  changes  of  principle  may  be 
effected  as  the  result  of  party  or  personal  intrigue,  some- 
times without  any  direct  legislative  sanction,  sometimes 
even  unperceived  for  many  years  by  the  public.  On  the 
other  hand,  the  difficulty  of  changing  a  "rigid"  Con- 
stitution may  sometimes  be  so  great,  that  obviously  desir- 
able changes  may  be  long  delayed,  or  never  made  at  all. 
It  is,  perhaps,  going  too  far  to  say  that,  had  the  Constitu- 
tion of  the  United  States  not  been  of  the  "rigid"  type, 
the  Civil  War  which  nearly  destroyed  the  Union  might 
never  have  occurred.  Yet  it  is  clear  that,  had  that 

1  In  Germany,  however,  no  amendment  of  the  Constitution 
could  be  made  if  fourteen  votes  were  cast  against  it  in  the 
Upper  House,  or  Federal  Council.  As  Prussia  controlled  seven- 
teen votes,  she  could  veto  any  change.  There  were  also  certain 
long-standing  arrangements  made  with  other  powerful  States  of 
the  Emp:re,  which  were  declared  to  be  unalterable. 


KINDS   OF   STATES  271 

Constitution  been  of  the  "flexible"  type,  the  possibilities  of 
compromise  or  peaceful  solution  would  have  been  greater. 
Another,  hardly  less  important,  distinction  of  type  is 
that  between  CENTRALISED  and  LOCALISED  States.  This 
distinction  must  not  be  confounded  with  that  between 
federal  and  unitary  States;  indeed  it  appears  to  have  little 
connection  with  it,  despite  the  superficial  resemblance. 
In  a  federal  State,  the  rights  of  the  federated  units  stand 
on  the  same  footing  as  those  of  the  federal  Government;  in 
a  merely  localised  State,  the  local  organs  are  subordinate 
to  the  central  authority.  In  America  and  Switzerland, 
which  are  legally  federal,  the  local  institutions — county, 
borough,  Gemeinde,  or  commune — are  highly  developed; 
so  they  are  in  the  United  Kingdom,  which  is  a  unitary 
State.  On  the  other  hand,  in  the  federal  German  Empire, 
and  in  unitary  France,  the  local  units,  despite  an  appear- 
ance of  power,  are  really  weak  before  the  central  Executive. 
Historically  speaking,  the  difference  is  due  mainly  to  the 
way  in  which  the  State  has  been  founded.  England  was 
formed  by  INTEGRATION,  i.e.  by  the  gradual  coalescence 
of  petty  rulerships  into  the  Heptarchic  Kingdoms,  and  of 
these  into  one  kingdom,  on  fairly  equal  terms. *  France  was 
formed  by  ABSORPTION  of  the  provinces  into  the  domain 
of  the  Kings  at  Paris,  whose  territory  at  first  only  extended 
to  the  valley  of  the  Seine  and  the  Orleanais.  England, 
and  the  countries  whose  institutions  she  has  directly  in- 
fluenced, have  usually  shown  strong  local  independence; 
while  the  French  tradition  of  centralisation  has  continued, 
from  the  ancien  regime,  through  the  Revolution  and  its 
many  changes,  to  the  present  day.  The  true  test  is  not  so 
much  the  legal  powers  of  the  local  units,  as  whether, 
within  those  limits,  the  local  governing  body — county 
council  or  borough  council — is  really  able  to  order  the 
affairs  of  the  locality  according  to  its  own  wishes,  or 
whether,  influenced  by  officials  appointed  by  the  central 

1Of  course  the  German  Empire,  in  which  local  government 
was  weak,  was  also  formed  by  integration;  but  the  federated 
States,  the  immediate  superiors  of  the  local  units,  were  not. 


272  THE   STATE  AND   THE   NATION 

government,  or  obliged  to  secure  the  approval  of  the 
central  authorities  for  every  step,  it  is  really  a  mouthpiece 
of  the  central  government. 

It  is  impossible  here  to  enter  upon  a  thorough  discussion 
of  the  merits  and  demerits  of  local  government.  It  is 
supposed  to  foster  resourcefulness,  good  will  amongst 
neighbours,  adaptability  of  institutions  to  local  needs; 
and  to  provide  a  useful  training  ground  for  recruits  to  the 
wider  service  of  the  State.  On  the  other  hand,  it  is  accused 
of  tolerating  corruption  and  inefficiency,  and  of  encouraging 
a  narrow  or  "parochial"  outlook  on  public  affairs;  and  it 
is  said  to  be  difficult  to  get  men  of  ability  to  take  part  in  it. 
But  it  must  not  be  supposed,  that  a  centralised  government 
necessarily  displays  the  merits  in  which  local  government 
is  weak.  Even  highly  centralised  governments  have  been 
known  to  be  short-sighted,  corrupt,  and  inefficient;  the 
highly  centralised  monarchies  of  eighteenth-century  France 
and  Germany  were  conspicuous,  in  many  cases,  for  just 
these  defects.  And  it  is  manifest,  that  the  defects  of  a 
centralised  government,  being  on  a  greater  scale  than  those 
of  local  units,  may  have  far  more  disastrous  results. 

Finally,  there  is  a  profound  and  far-reaching  distinction 
between  COMMON  LAW  and  PREROGATIVE  States,  though  it 
is  not  very  easy  for  any  one  but  a  lawyer  to  grasp.  Perhaps 
it  may  be  best  explained  by  saying  that,  in  the  former  class 
of  States,  the  Government  or  other  public  official  stands  on 
precisely  the  same  ground,  as  regards  legal  responsibility 
for  his  acts,  as  the  private  citizen;  while,  in  the  latter,  the 
Government  official  is  in  a  privileged  position,  is  at  least 
always  presumed  to  be  right,  and  his  alleged  offences  are 
tried,  not  by  the  ordinary  public  tribunals,  but  by  special 
Courts,  composed,  ultimately,  of  members  of  his  own  class, 
sometimes  sitting  in  secret  session.  Of  course  the  distinction 
must  not  be  exaggerated.  It  is  not  contended  that  in  Great 
Britain,  for  example,  which  is  the  home  of  "common  law" 
traditions, x  or  in  the  United  States,  which  have  inherited 

1  Doubtless  the  "royal  prerogative"  is  familiar  in  Great  Britain ; 
but  the  term  is  there  only  another  name  for  the  executive 
authority,  which  is  strictly  limited  by  law. 


KINDS   OF    STATES  273 

them  from  her,  the  Government  official  cannot  lawfully  do 
things  which  the  private  citizen  may  not  do.  Of  course  he 
can;  but  only  if  they  are  authorised  by  law — not  necessarily 
by  statute  law.  Thus,  for  example,  in  England,  a  sheriff's 
officer,  duly  warranted,  may  seize  a  man's  furniture  for 
payment  of  a  judgment  debt,  which  a  private  person  (even 
the  plaintiff  himself)  may  not  do.  But  no  British  Govern- 
ment official  may  do  an  act,  to  the  prejudice  of  a  private 
citizen,  merely  because  he  thinks  it  advantageous  for  the 
State  to  do  so;  unless  his  act  is  clearly  warranted  by  law. 
And  the  fact  that  he  acted  under  obedience  to  the  orders 
of  his  official  superiors,  even  of  the  Crown  itself,  will  not 
save  him  from  a  criminal  prosecution  or  a  private  action. 
By  a  well-understood  rule  of  English  law,  the  "King  can 
do  no  wrong" — i.e.  no  proceedings  alleging  a  wrongful  act 
can  be  directed  against  the  King  personally.  But  this  rare 
immunity,  granted  for  obvious  reasons,  does  not  extend  to 
protect  those  who  act  by  the  King's  orders;  that  point  was 
finally  settled  on  the  impeachment  of  the  Earl  of  Danby, 
more  than  two  hundred  years  ago.  And,  though  the  King 
can  pardon  a  convicted  criminal,  he  cannot  pardon  an 
accused  person  before  conviction;  and  he  cannot  intervene 
to  stay  a  private  lawsuit.  This  great  RULE  OF  LAW  extends 
even  to  the  acts  of  the  military  authorities,  both  in  war 
and  peace;  and  the  only  occasions  on  which  its  application 
in  this  respect  has  been  seriously  questioned  in  recent  years, 
have  arisen  out  of  the  employment  of  soldiers  to  quell  dis- 
turbances of  the  peace.  Of  course  soldiers  can  be  so  em- 
ployed, in  case  of  necessity;  but  so  also  can  civilians — 
indeed  the  latter,  at  any  rate  male  adults,  are  liable  to  fine 
and  imprisonment  if  they  refuse  to  assist  the  properly 
constituted  authorities  in  quelling  disorder.  In  fact,  when 
the  soldier  takes  part  in  suppressing  a  riot,  he  does  so,  not 
as  a  soldier,  but  as  a  citizen,  and  is  judged  by  the  same 
standards;  though,  doubtless,  in  consideration  of  his 
military  traditions,  rather  more  leniency  than  in  the  case 
of  a  civilian  is  extended  towards  his  behaviour,  in  the  event 
of  it  being  questioned  in  a  court  of  law.  For  it  must  be 


274  THE   STATE   AND    THE   NATION 

remembered,  that  a  British  soldier  is  in  the  difficult  position 
of  being  under  two  different  and  occasionally  conflicting 
laws — the  civil  law,  which  says  that  any  one  guilty  of 
deliberately  causing  the  death  of  a  fellow-creature  without 
lawful  warrant  is  liable  to  be  hanged,  and  the  military  law, 
which  says  that  a  soldier  refusing  to  obey  the  orders  of 
his  military  superior  is  liable  to  be  shot.  Happily,  the 
British  military  code  of  obedience,  strict  as  it  properly  is, 
is  not  absolute;  and  it  may  be  safely  said  that  there  is  no 
rule  in  it  which  condemns  to  death  the  man  who  refuses  an 
unlawftd  military  order. 

All  this  may  seem,  to  a  Briton  or  an  American,  ordinary 
enough,  nurtured  as  he  has  been  in  traditions  of  freedom. 
But  it  might  be  well  that  he  should  realise  how  rare  it 
is,  even  among  civilised  nations.  In  many  Oriental 
countries,  the  private  civilian  is  helpless  before  authority, 
even  in  its  most  subordinate  form;  and  it  may  be  that 
government  in  such  countries  is  not  possible  on  "common 
law"  terms.  Certainly  the  British  Government  has  not 
yet  felt  itself  able  completely  to  recognise  the  principle  in 
India;  and  we  should  be  careful  not  to  suppose  it  to  be  of 
universal  application.  But,  even  in  European  States,  it 
is  regarded  as  an  impossible  ideal;  and  Continental  writers 
profess  gravely  to  doubt  whether  government  can  really  be 
carried  on  where  it  prevails.  When  confronted  by  the  fact 
that  "common  law"  government  in  the  British  Empire  and 
the  United  States  has  not  been  devoid  of  stability,  these 
writers  are  apt  to  shrug  their  shoulders,  and  set  down  the 
fact  as  one  of  the  many  oddities  of  the  Anglo-Saxon  char- 
acter. By  any  one  who  preserves  an  open  mind,  it  can  hardly 
be  dismissed  so  lightly.  Though,  or  perhaps  we  should  say 
because,  it  is  the  outcome  of  a  long  historical  struggle,  in 
which  the  spirit  of  freedom  has  successfully  fought  against 
tyranny  on  the  one  hand  and  anarchy  on  the  other,  it  is 
a  contribution  to  practical  politics  of  which  the  Anglo- 
Saxon  has  every  right  to  be  proud,  perhaps  more  proud 
than  of  any  other  of  his  political  achievements.  It  implies 
no  disrespect  for  authority,  even  authority  as  embodied 


KINDS   OF   STATES  275 

in  the  State;  and,  as  recent  events  have  shown,  Anglo- 
Saxon  communities  have  known  how  to  keep  it  within 
bounds,  when  a  crisis  has  demanded  a  temporary  restriction 
of  it.  Only,  they  have  insisted  that  any  such  restriction 
shall  be  as  legal  as  the  liberty  which  it  restrains.  It  was  this 
important  fact  which  justified  the  recent  restrictions  im- 
posed by  the  Defence  of  the  Realm  Acts  in  England,  and 
the  corresponding  regulations  in  other  Anglo-Saxon  com- 
munities; though  their  enforcement  may  not  have  been, 
in  all  cases,  and  in  all  respects,  judicious.  For  not  only 
were  these  regulations  legal,  in  the  formal  sense,  but, 
despite  the  intemperate  protests  of  a  few  extremists,  they 
were  emphatically  approved  by  public  opinion,  which  is 
the  supreme  court  of  appeal  in  democratic  communities. 
And  the  readiness  with  which  they  were  accepted  was 
one  of  the  great  disappointments  of  aggressive  autocracy, 
which  anticipated  a  fatal  reluctance  to  submit  to  them. 

But,  to  the  believer  in  political  progress,  this  achieve- 
ment of  Anglo-Saxon  communities  does  not  merely  indicate 
the  high-water  mark  of  civilised  politics.  It  is  full  of  hope 
for  the  future.  Not  only  has  it  saved  the  Anglo-Saxon  from 
that  blind  worship  of  the  State  which  has  led,  in  some  coun- 
tries, to  disaster  and  ruin.  But  it  also  reveals,  unconsciously 
it  may  be,  a  spirit  which  is  steadily  striving  to  realise  in 
practice  that  principle  of  equality,  or  equity,  which,  despite 
the  travesties  of  it  which  have  disappointed  high  hopes, 
is  still  the  ideal  basis  of  human  justice.  It  is  an  attempt 
to  appeal  to  the  higher  nature  of  mankind,  by  treating  the 
ordinary  man  or  woman  as  a  reasonable  being,  not  as  an 
unreasonable  child  or  a  wilful  rebel  against  authority.  It 
implies  a  recognition  of  the  truth,  that  the  art  of  govern- 
ment is  not  a  Machiavellian  secret  known  to  the  few,  to 
which  the  many  must  submit  with  blind  obedience,  but  an 
intelligent  harmony  between  rulers  and  ruled.  Thereby 
it  attempts — again,  it  may  be,  unconsciously — to  bring  the 
Law  of  Man  into  harmony  with  the  Law  of  God. 


CHAPTER  XVIII 

PROPOSALS  OF  CHANGE 

IN  this  concluding  chapter,  it  is  proposed  to  discuss  briefly 
a  few  of  the  more  important  and  fundamental  proposals 
which  have  recently  been  put  forward  for  the  introduction 
of  changes  into  the  institutions  of  political  life.  Most  of 
them  have  been  produced  by  the  tremendous  experiences 
of  the  Great  War;  but  one  or  two  of  them  are  survivals  from 
the  pre-war  epoch,  though  they  have  been,  more  or  less 
profoundly,  affected  by  the  war.  It  is  hardly  possible  for 
any  writer  to  discuss  these  proposals  without  some  display 
of  personal  opinion;  all  that  can  be  done  is,  to  strive  after 
fairness  of  presentation.  After  all,  perfect  impartiality  is 
perilously  near  indifference;  and  indifference  is  hardly  a 
quality  to  be  desired  in  matters  affecting  the  welfare  of 
mankind. 

Unquestionably,  the  most  important  practical  proposal 
put  forward  by  any  considerable  body  of  opinion  as  the 
result  of  the  war  is  the  proposal  for  a  LEAGUE  OF  NATIONS. 
The  main  object  of  the  proposal  is,  of  course,  the  prevention 
of  all  future  wars,  or,  at  least,  of  as  many  as  possible.  But, 
as  will  be  pointed  out,  there  is  no  conclusive  reason  why 
the  proposal,  if  realised,  should  not  have  immense  positive, 
as  well  as  this  great  negative  result. 

It  is  hardly  necessary  to  argue,  after  recent  experiences, 
that  the  prevention  of  war  is  a  desirable  object,  at  least  for 
civilised  communities.  This  conclusion  had  already  been 
reached,  long  before  1914,  by  all  communities  with  any 
claims  to  civilisation,  save  one,  in  which  a  long  tradition 
of  military  rule  had  been  sedulously  converted  into  a  power- 
ful war  propaganda,  by  the  abuse  of  one  of  the  greatest 
modern  scientific  generalisations.  The  statement  of  a 
great  physical  law  embodied  in  the  phrase  "struggle  for 

276 


PROPOSALS   OF   CHANGE  277 

existence,"  was  converted  into  an  ethical  dogma  in  no 
way  justified,  either  by  Darwin's  own  teaching,  or  by  the 
facts  upon  which  it  was  based;  and  it  cannot  be  doubted 
that  some  of  the  champions  of  that  dogma  knew  this  to 
be  the  case.  Their  responsibility  is  appalling;  and  no 
human  retribution  can  mete  out  to  them  adequate  punish- 
ment. The  most  terrible  fate  that  can  be  desired  for  them 
is,  that  they  may  live  long  to  witness  the  ruin  that  they 
have  brought  upon  those  whom  they  deceived.  Many  of 
their  active  supporters  were  men  of  limited  intelligence, 
who  fell  blindly  into  the  commonest  of  intellectual  errors — 
the  confusion  between  that  which  is,  and  that  which  is 
desirable.  Their  error  may  fitly  be  compared  with  another 
of  almost  equally  tragic  importance,  which  converts  the 
purely  economic  truth  that  unrestrained  competition  tends 
to  produce  cheapness,  into  the  ethical  maxim  that  un- 
limited competition  is  the  economic  ideal.  And  when  these 
illogical  thinkers  point  to  the  heroic  instances  of  courage, 
endurance,  and  self-sacrifice  which  every  war  produces 
(not,  alas,  in  its  promoters,  but  in  its  victims),  we  are  irre- 
sistibly reminded  of  the  eighteenth-century  fashion  of 
congratulating  the  sufferer  from  gout  on  his  appearance  in 
Bath-chair  and  bandages. 

All  proposals  for  a  League  of  Nations  proceed  upon  the 
assumption,  hardly  to  be  questioned,  that  nothing  less 
than  a  powerful  international  combination  can  hope  to 
prevent  future  wars,  even  among  so-called  "civilised" 
communities,  within  a  measurable  time.  Valuable  as  is 
the  spiritual  contribution  towards  that  great  end  made  by 
the  advocates  of  individual  non-resistance  to  aggression, 
it  is  clear,  if  experience  goes  for  anything,  that  civilisation, 
if  not  mankind  itself,  is  likely  to  be  destroyed  before  their 
hopes  are  realised;  unless  some  organised  attempt  is  made 
to  realise  them  through  political,  which  includes  forcible, 
action.  Physical  force,  rightly  directed,  is  essential  to  the 
achievement  of  many  ends  universally  admitted  to  be 
desirable;  almost  the  whole  of  our  material  civilisation 
depends  upon  it,  from  the  laying  of  a  road  to  the  building 


of  a  cathedral.  That  a  universal  desire  for  peace  cannot 
be  produced  merely  by  the  exercise  of  physical  force,  may 
be  admitted;  to  believe  the  contrary  is  to  fall  into  the 
fatal  mistake  into  which  the  militarist  rulers  of  Germany  fell. 
But  the  use  of  physical  force  may  be  necessary  to  compel 
the  realisation  of  a  desire  for  peace  which  is  cherished  by  the 
great  majority  of  civilised  people;  and,  therefore,  it  is  neces- 
sary so  to  arrange  that  it  shall  be  forthcoming,  in  sufficient 
quantity,  if  required,  at  the  right  time  and  in  the  right  way. 

But  again,  if  we  turn  to  our  industrial  model,  we  see 
that  all  really  great  results  into  the  production  of  which 
physical  force  enters,  imply  the  harmonious  co-operation 
of  many  wielders  of  force.  A  pair  of  scissors  may  be  ground 
by  a  single  operative  working  his  grindstone;  the  building 
of  a  palace  requires  the  co-operation  of  an  almost  countless 
number  of  workers  of  many  kinds,  each  applying  physical 
force,  in  ordered  and  harmonious  constraint,  to  a  great  end. 
And  the  Palace  of  Peace,  though  a  spiritual,  rather  than  a 
material  end,  requires  the  aid  of  physical  force;  the  main 
difference  being  that,  whereas  for  the  material  building  the 
actual  exercise  of  physical  force  is  necessary,  for  the  spiritual 
its  organised  preparation  may  be  sufficient. 

But,  as  our  review  of  history  has  surely  taught  us,  the 
pathway  to  co-operation  is  long  and  difficult,  full  of  pitfalls 
and  obstructions.  For  co-operation  requires  individual 
sacrifices,  mutual  forbearances,  patience,  and  other  virtues 
not  easily  practised,  especially  among  groups  organised  on 
a  military  basis,  such  as  the  governments  of  States.  It  is 
easy  for  the  idealist  to  say  that  modern  States,  whatever 
may  have  been  their  historical  origin,  are  not  military 
organisations.  It  is  true  that  modern  States,  even  the  most 
"militaristic,"  are  not  merely  military  organisations.  As 
we  have  seen,  nearly  all  modern  States  have  assumed  other 
than  military  functions.  But  most  States  remain  true  to 
type;  and  we  may  well  be  in  doubt  whether  the  present 
time,  when  most  of  them — some  willingly,  some,  doubtless, 
unwillingly — have  "reverted  to  type"  in  the  most  complete 
fashion,  is  a  favourable  moment  to  expect  of  them  to  engage 


PROPOSALS   OF   CHANGE  279 

in  a  crusade  which,  if  it  is  successful,  will  do  much  to 
destroy  the  chief  reason  for  their  existence. 

Thus  it  is  impossible  to  ignore  entirely  the  suggestion 
which  has  been  put  forward  in  certain  quarters,  that  the 
most  hopeful  foundation  of  a  successful  League  of  Nations 
is  not  a  Congress  or  association  of  statesmen,  but  a  Con- 
ference of  representatives  of  the  arts  of  peace — of  industrial- 
ists, men  of  science,  historians,  and  religious  leaders, 
though,  alas!  the  record  of  the  last-named  in  the  matter  of 
unanimity  is  none  too  clear.  Unquestionably  it  would  seem, 
at  first  sight,  that  such  an  assembly  would  be  more  likely 
to  arrive  at  an  agreement,  than  a  congress  of  statesmen, 
who,  from  the  very  nature  of  the  case,  would  think  in 
terms  of  nationality,  that  is,  of  communities  organised 
as  States.  Doubtless  the  divisions  in  such  an  assembly 
would  be  many;  but  would  they  run  on  national  lines? 
Would  they  not  rather  cut  across  them?  And,  if  these 
divisions  of  opinion  tended,  as  they  might,  to  a  reorganisa- 
tion of  the  world,  would  not  that  reorganisation  take  a 
form  which  would  render  war  difficult,  if  not  impossible? 
Let  us  assume,  for  example,  that  one  result  of  such  a  con- 
ference was  to  draw  chiefly  a  line  of  division  between 
capitalists  and  wage-earners.  We  know,  only  too  well,  that 
such  divisions  exist  now  inside  nations;  and  there  is  little 
reason  to  suppose  that  the  differences  which  exist  between 
them  would  be  more  easy  of  settlement  than  those  which, 
in  the  past,  have  divided  nations.  But  would  they  lead  to 
war?  For  war  is  still  a  geographical  problem,  and  is  likely 
to  remain  so,  despite  the  development  of  aerial  warfare. 
It  is  hard  to  imagine  a  war  the  chief  object  of  which  is  not 
the  acquisition  or  defence  of  territory,  or  in  which  invasion 
and  conquest  of  enemy  territory  is  not  the  sign  of  victory 
for  the  one  party  and  defeat  for  the  other.  So  long  as  Man 
remains  of  all  things  (save  the  soil  itself)  the  most  difficult 
to  move,  so  long  as  the  desecration  of  his  home  is,  for  the 
average  man,  the  supreme  disaster,  so  long  must  war,  in 
the  military  sense,  be  conducted  between  territorial  units; 
though  it  is,  no  doubt,  logically  possible  to  imagine  a  war 


280  THE   STATE   AND   THE  NATION 

carried  on  in  different  countries  by  one  class  against 
another,  in  nominal  alliance  with  the  corresponding  classes 
in  other  countries. 

This  is,  in  fact,  the  dream  of  "The  International,"  ex- 
tended to  cover  the  whole  social  organisation,  save  that 
the  class  which  has  hitherto  more  particularly  identified 
itself  with  this  ideal  has  always  assumed,  that  its  aims 
could  be  effectively  secured  without  recourse  to  arms. 
Whether  this  assumption  is  sound,  may  well  be  doubted; 
for  economic  quarrels  have  been  known  to  excite  fierce 
passions,  and  the  prospect  of  universal  civil  war  is  not  a 
possibility  which  can  be  wholly  ruled  out  of  account.  But 
there  is  a  graver  objection  to  the  proposal  to  entrust  the 
destinies  of  the  world  to  a  non-political  Conference. 

For  it  is  unquestionable  that,  if  the  Palace  of  Peace  is 
to  be  well  and  strongly  built,  it  must  rest  on  the  most  solid 
foundations  known  to  humanity.  That  is  to  say,  it  must 
look  for  its  support  to  the  strongest  and  most  deep-seated 
feelings  of  which  humanity  is  capable.  And  if  the  Great 
War  has  proved  anything,  it  has  proved  that  the  strongest 
of  all  human  feelings  is  NATIONALITY,  that  is  to  say,  the 
instinct  of  civilised  human  beings  to  defend  the  interests  of 
that  association  which  we  call  a  nation,  or  a  community 
organised  under  a  government  for  general,  not  for  specific 
ends.  Under  the  sway  of  this  instinct,  millions  of  men  and 
women  have  freely  sacrificed  all  else  that  they  hold  dear — 
wealth,  leisure,  friends,  sons  and  daughters,  even  life  itself. 
The  day  may  come  when  this  instinct  will  give  way  to  an- 
other, based  on  different,  it  may  be  wider,  interests.  But  that 
time  is  not  yet;  and  the  task  before  the  world  is  immediate. 

So  then,  it  would  seem,  that,  in  adopting  the  ideal  of 
a  League  of  Nations,  mankind  has  at  least  justified  its  choice 
of  a  basis.  But  what  of  the  building  which  is  to  rest  upon  it? 

The  term  "League"  is  vague,  and,  perhaps  for  that  very 
reason,  has  commended  itself  to  the  advocates  of  the  new 
cause.  But  it  has  unhappy  associations.  It  recalls,  inevit- 
ably, memories  of  wars  and  discredited  intrigues.  It  has  a 
record  of  failure  behind  it.  It  suggests  vagueness  and 


PROPOSALS   OF   CHANGE  281 

pessimism.  It  presupposes  a  minimum  of  agreement. 
Doubtless  it  was  wise,  in  the  days  when  hopes  of  success  in 
attainment  were  feeble,  not  to  incur  the  charge  of  dreaming. 
But  these  are  times  in  which  boldness  is  the  truest  wisdom, 
when  even  the  partial  realisation  of  a  great  aim  is  better 
than  the  complete  success  of  a  smaller  enterprise.  One 
might  even  go  further,  and  say  that  a  great  aim  is  some- 
times more  likely  to  succeed  than  a  small  one.  May  not 
this  be  the  case  at  the  present  crisis? 

For  if  "Leagues,"  that  is,  in  substance,  associations 
dealing  only  with  military  questions,  have  a  bad  record, 
there  is  another  kind  of  political  experiment  which  has 
had  a  solid  history  of  success.  In  the  preceding  chapter 
(pp.  265-68),  we  have  analysed  the  nature  of  a  FEDERA- 
TION. It  is  now  desirable  to  point  out  the  extent  to  which 
the  federal  movement  has  spread  in  recent  history. 

The  modern  movement  towards  federation  began  so  far 
back  as  the  end  of  the  thirteenth  century,  when  the  three 
original  cantons  of  the  Swiss  Republic — Uri,  Schwyz,  and 
Unterwalden — formed  themselves  into  a  union  for  mutual 
defence,  under  the  vaguely  denned  overlordship  of  the 
Holy  Roman  Empire.  The  history  of  their  heroic  struggle 
is  well  known.  At  last,  the  union,  by  then  increased  to 
include  thirteen  cantons,  achieved  recognition  of  its 
independence  by  the  Congress  of  Westphalia  in  1648. 
Despite  many  difficulties,  it  continued  to  grow  in  power 
until  the  end  of  the  eighteenth  century,  when,  like  almost 
all  the  Continental  Powers,  it  fell  for  a  time  under  the 
all-conquering  sway  of  Bonaparte,  and  was  by  him  re- 
modelled in  drastic  fashion.  But  its  eclipse  was  tempo- 
rary; and,  emerging  once  more  after  the  downfall  of 
Napoleon,  it  gradually  regained,  not  only  its  inde- 
pendence but  its  native  Constitution  (finally  renewed  in 
1894),  and  to-day  it  stands,  not  only  one  of  the  best- 
governed  States,  but,  of  the  neutral  Powers  in  the  Great 
War,  perhaps  that  one  which  has  best  preserved,  in  spite 
of  threatening  forces,  not  merely  its  independence  and 
unity,  but  its  dignity  and  its  moral  worth.  It  is  true  that, 


282   THE   STATE   AND    THE   NATION 

since  1815,  the  Swiss  Republic  has  enjoyed  the  somewhat 
precarious  benefits  of  neutralisation;  but  it  can  hardly  be 
doubted,  in  view  of  well-known  facts,  that  it  was  to  her  own 
preparedness  for  defence  that  Switzerland  owed  her  immu- 
nity from  invasion  in  the  late  war.  Assuredly,  the  Swiss  Fed- 
eration is  a  hopeful  augury  for  an  experiment  in  federation. 

No  less  hopeful  is  the  record  of  Holland, x  the  second  of 
the  groups  to  adopt  the  principle  of  federation.  The  story 
of  the  heroic  struggle  by  which  she  achieved  her  indepen- 
dence from  Spanish  tyranny  has  been  told  in  immortal 
prose  by  the  American  historian,  Motley.  A  blaze  of 
prosperity  followed,  which  has  since  somewhat  paled;  and 
internal  troubles,  no  less  than  external  dangers,  succeeded 
to  the  great  Dutch  era  of  the  seventeenth  century.  But 
the  ill-considered  inclusion  of  Brabant  and  Flanders,  forced 
upon  the  somewhat  reluctant  Dutch  by  the  Congress  of 
Vienna,  was  purged  by  the  separation  of  Belgium  in  1830; 
and  the  incident  serves  mainly  to  show  the  weakness  of  a 
federation  for  aggressive  absorption — a  lesson  not  without 
its  value  in  judging  of  the  merits  of  the  system.  Certainly 
the  advocates  of  that  system  have  nothing  to  be  ashamed 
of  in  the  history  of  Holland. 

Nearly  two  centuries  were  to  pass  before  another  great 
experiment  on  federal  lines  was  made:  but,  when  it  came, 
it  was  a  triumphant  success.  When  the  thirteen  American 
colonies  of  the  eastern  coast  declared  their  independence 
of  Great  Britain  in  1776,  the  wisest  of  their  leaders 
foresaw  the  dangers  ahead.  Doubtless  the  desire  to  offer 
an  effective  resistance  to  Britain  was  the  immediate 
stimulus  to  union;  but  it  is  not  to  be  doubted,  that  these 
leaders  looked  beyond,  and  earnestly  desired  to  save  the 
new  Continent  of  America  from  the  internecine  wars  which, 
for  ages,  had  made  Europe  a  shambles,  closed  only  for 
brief  periods  of  exhaustion.  It  is  needless  to  dwell  upon 

1  Strictly  speaking,  "Holland"  is  an  incorrect  name  for  the 
Kingdom  of  the  Netherlands.  But,  to  Anglo-Saxon  readers,  the 
name  of  the  leading  province  of  the  union  is  familiar  as  the 
synonym  for  the  whole. 


PROPOSALS   OF    CHANGE  283 

the  success  of  one  of  the  greatest  political  experiments  in 
the  world's  history.  Once,  and  once  only,  has  the  Union 
founded  by  the  men  of  1787  been  in  real  peril;  and  the 
rapidity  and  the  completeness  with  which  the  Great 
Republic  recovered  from  the  shock  of  her  Civil  War  are, 
perhaps,  the  most  convincing  of  all  testimonies  to  the 
soundness  of  well-considered  federal  institutions.  But 
there  is  another,  and  hardly  less  relevant,  lesson  to  be 
drawn  from  the  brilliant  expansion  of  the  thirteen  original 
States  of  the  Union  into  a  mighty  system,  stretching  from 
the  Atlantic  to  the  Pacific,  and  controlling  the  destinies 
of  a  hundred  millions  of  men  and  women.  The  superficial 
critic  of  American  institutions  is  apt  to  regard  the  whole 
area  of  the  United  States  as  covered  by  a  uniform  and 
somewhat  monotonous  type  of  material  civilisation. 
Nothing  could  be  further  from  the  truth.  Underlying 
unity  there  unquestionably  is;  and  it  is  precisely  of  the 
kind  which  the  opponents  of  World  Federation  dread  to 
see  disappear,  for  it  consists  mainly  of  the  passionate  belief 
in  individual  freedom.  But  it  would  be  odd,  indeed,  if 
individual  freedom  were  to  produce  monotony  of  conduct; 
and,  in  fact,  it  needs  little  acquaintance  with  America  to 
realise,  that  her  people  differ  enormously  among  themselves 
in  habit  and  life,  in  ways  of  thought  and  expression,  no  less 
than  in  language  and  garb,  in  occupation  and  ambitions. 
In  no  country  in  the  world  is  the  individual  man,  or  the 
associated  group,  at  more  perfect  liberty  to  follow  the 
bent  of  his  or  its  peculiar  genius,  than  in  the  country  of  the 
American  Union.  In  no  country,  not  even  in  the  British 
Empire,  is  public  opinion  more  tolerant  of  diversity,  or 
even  of  eccentricity. 

We  touch,  naturally,  on  difficult  ground,  when  we  come 
to  deal  with  the  efforts  of  the  German-speaking  communi- 
ties to  realise  the  federal  principle;  and  it  is  hard,  in  view 
of  recent  facts,  to  preserve  an  impartial  attitude  in  dealing 
with  them.  Historically,  Germany  has  an  impossible  past. 
She  inherited  from  antiquity  an  imposing  nightmare  in  the 
Holy  Roman  Empire;  itself,  as  we  have  seen  (pp.  142,  158), 


284  THE   STATE   AND    THE   NATION 

an  over-ambitious  attempt  of  Charles  the  Great  to  revive, 
in  a  wholly  different  world,  the  pretensions  of  the  ancient 
Empire  of  the  Csesars.  As  we  have  also  seen  (p.  164), 
this  travesty  of  politics  was  effectively  shattered  by  the 
Wars  of  the  Reformation;  though  its  formal  dissolution 
was  not  pronounced  until  the  Napoleonic  era  Almost 
immediately,  the  necessity  for  some  expression  of  German 
unity  made  itself  felt;  but  from  1815  to  1866,  the  so-called 
German  Confederation  was  little  more  than  a  military 
alliance  intended  to  be  permanent,  while  it  was  gradually 
undermined  by  the  formation,  under  the  auspices  of  Prus- 
sia, of  a  Customs  Union,  or  Zollverein,  to  which  only  the 
North  German  States  were  admitted.  The  natural  result 
was  that,  after  the  long  feud  between  Prussia  and  Austria 
had  culminated  in  the  war  of  1866,  it  was  easy  for  vic- 
torious Prussia  to  draw  together  the  Northern  States  into 
the  North  German  Federation,  in  which  she  assumed  pre- 
ponderant authority. 

The  North  German  Confederation  of  1866  marked  a 
great  advance  of  the  federal  idea  in  Germany;  for  it  sub- 
stituted a  real  government,  with  an  elected  Parliament  or 
Diet,  for  the  merely  diplomatic  council  of  royal  delegates, 
which  had  constituted  the  confederate  authority  of  1815. 
But  it  sinned  deeply  against  the  cardinal  principles  of 
federalism,  not  merely  by  retaining  the  old  Bundesrat  or 
Council  of  Princes,  as  an  authority  equal  or  superior  to 
the  Diet  or  Reichstag,  but  by  retaining  the  unequal  repre- 
sentation of  the  States  in  the  Bundesrat,  on  the  basis  of 
military  power,  as  well  as  by  rendering  possible  a  series  of 
appointments  which  practically  made  *he  Executive  of 
the  Empire  an  extension  of  Prussian  bureaucracy.  In 
liberal  federations,  while  the  recognition  of  material  power 
is  expressed  by  making  representation  in  the  popular 
House  depend  upon  population,  the  prir  v.le  of  right  is 
recognised  by  giving  equal  representation  to  all  the  States 
in  the  aristocratic  House;  while  the  Federal  Executive  is 
kept  jealously  free  from  the  influence  of  any  single  State. 
Yet  these  radical  faults  of  the  German  Constitution  of 


PROPOSALS   OF   CHANGE  285 

1866  were  perpetuated  in  the  amended  Constitution  adopted 
in  1871,  after  the  Franco-Prussian  War;  despite  the  fact 
that  the  North  German  Bund  of  1866  had  by  then  become 
the  German  Empire,  by  the  inclusion  within  it  of  Bavaria 
and  the  other  South  German  Powers,  which  made  certain 
stipulations  to  secure  their  own  autonomy. 

It  is,  perhaps,  hardly  to  be  expected,  that  German 
federation  will  be  regarded  as  a  favourable  influence 
towards  World  Federalism;  but  we  must  be  careful  to 
distinguish  between  the  good  and  the  evil  consequences  of 
German  union.  So  far  as  the  German  States  themselves 
were  concerned,  it  is  unquestionable,  that  even  the  imper- 
fect Confederation  of  1815  exercised  a  wholesome  effect; 
principally  by  permitting  the  development  of  the  Customs 
Union,  which  gradually  converted  the  North  German  States 
from  a  mass  of  hostile,  or,  at  least,  deeply  suspicious 
units,  waging  veiled  war  against  one  another  by  a  com- 
plicated system  of  tariffs,  into  an  economic  whole,  favour- 
able to  the  development  of  industry.  It  also  put  an  end  to 
the  unedifying  spectacle  manifested  in  the  Napoleonic 
wars,  when  one  German  State  was  seen  righting  against 
another  in  the  interests  of  the  foreigner.  Even  the  war  of 
1866  against  Austria,  mainly  conducted  by  Prussia,  may 
be  justified  as  necessary  to  expel  from  the  Union  a  Power 
which  was  largely  non-German,  and  utterly  incapable  of 
acting  as  a  leader  of  the  German  nation.  Even  the  Con- 
stitution of  1866,  which  was,  in  substance,  adopted  in  the 
revision  of  1871,  indubitably  strengthened  Germany  for 
defence — in  fact,  made  her  almost  impregnable  in  a  really 
defensive  war.  It  is  unnecessary  to  speculate  on  the  ulti- 
mate objects  of  the  framers  of  the  Constitution  of  1866-70; 
it  is  sufficient  to  have  pointed  out  the  radical  vices  of  that 
Constitution,  which  enabled  unscrupulous  politicians  of  the 
military  type  to  poison  the  mind  of  the  whole  nation,  and 
plunge  it  into  the  debacle  of  the  Great  War.  The  lesson  of 
German  federalism  is,  not  that  federalism  is  a  bad  thing; 
but  that  the  defects  of  German  federalism  must  be  avoided 
by  the  framers  of  a  federal  pact  intended  to  produce  peace. 


286  THE   STATE   AND   THE   NATION 

The  half-century  from  1865  onwards  produced  no  less 
than  three  federal  Constitutions  of  different  types,  each  of 
which  has  already  resulted  in  a  striking  success.  One 
feature,  of  a  hitherto  novel  kind,  marks  the  Dominion  of 
Canada,  the  Commonwealth  of  Australia,  and  the  Union  of 
South  Africa.  None  of  them  claims  sovereign  powers,  nor 
is  its  Constitution  aimed  at  securing  them.  On  the  con- 
trary, the  federal  movement  in  each  case  was  actively  en- 
couraged by  the  sovereign  Power  to  which  they  render 
willing  allegiance;  and  their  value  for  our  immediate  pur- 
pose is,  that  they  manifest  once  more,  not  merely  the 
healing  power  of  federalism,  but  its  adaptability  to  various 
conditions.  The  details  of  the  arrangements  adopted  in 
these  cases,  interesting  as  they  are,  there  is  no  space  to 
describe.  It  must  be  sufficient  to  say,  that  they  preserve 
the  essentials  of  federalism,  viz.,  a  scope  for  strong  and 
united  action  of  the  whole  group,  combined  with  a  respect 
both  for  the  essential  principle  of  right,  which  treats  all 
communities  as  equals  in  their  claim  for  justice,  and  of 
the  undeniable  fact  of  the  superior  strength  of  a  greater, 
as  compared  with  a  smaller,  community.  This  last  recogni- 
tion of  stern  fact  is,  however,  mitigated,  in  free  communi- 
ties, by  the  consideration  that,  after  all,  it  is  based  on 
fundamental  individual  equality.  For,  if  the  equal  repre- 
sentation of  the  federal  units,  in  Senate  or  Upper  House, 
symbolises  the  equality  of  communities,  the  representation 
according  to  population,  in  House  of  Representatives  or 
Legislative  Assembly,  typifies,  in  democratic  countries,  the 
equality  of  individuals. 

It  is,  however,  quite  possible,  that  the  greatest  experi- 
ment of  all  in  modern  times  in  the  direction  of  federalism 
has  failed  to  obtain  recognition  as  such,  owing  to  the 
simple  fact  that  it  is  yet  incomplete,  and  has  been  called 
by  another  name.  Yet,  to  any  one  who  is  not  misled  by 
mere  names,  it  is  clear  that  the  grant  of  self-government 
to  the  great  Atlantic  and  Pacific  Dependencies  of  the 
British  Crown,  during  the  last  half  of  the  nineteenth 
century  and  the  first  ten  years  of  the  twentieth,  is  really 


PROPOSALS   OF   CHANGE  287 

an  irrevocable  step  towards  the  federalising  of  the  British 
Empire.  It  is  true  that,  just  as  the  American  Republic  has 
her  "Territories,"  which  do  not  enjoy  the  powers  and 
privileges  of  federal  units,  so  the  British  Empire  comprises 
many  communities  which  have  not  yet  reached  the  status 
of  self-government.  It  is  true  also,  that  the  federal 
machinery  of  that  Empire  is  lamentably  deficient;  though 
changes  in  the  direction  of  development  have  recently  been 
made.  These  defects,  however,  due,  as  they  are,  not  to 
deliberate  design,  but  the  accidents  of  historical  growth, 
have  in  them  nothing  of  the  aggressive  selfishness  of  a 
plot  to  enhance  the  power  of  a  "predominant  partner," 
and  have  long  been  regarded  rather  as  a  burden  than  a 
privilege.  They  certainly  form  no  obstacle  to  the  ideal  of 
a  World  Federation;  while  the  movement  which  has  given 
to  the  British  Empire  its  self-governing  Dominions,  is  a 
striking,  because  largely  unconscious,  testimony  to  the 
wisdom  of  that  ideal. 

To  sum  up.  The  notion  of  the  merely  military  League  is 
discredited  by  the  facts  of  history;  the  idea  of  the  Federal 
Union  has  conquered  two  great  Continents  and  a  substantial 
part  of  a  third,  and  is  to  be  found  at  work  in  States  so 
diverse  in  conditions  as  Switzerland,  Germany,  the  Amer- 
ican Republic,  Canada,  Australia,  and  South  Africa.  In  one 
striking  instance,  it  has  been  found  capable  of  abuse;  in 
almost  all  other  cases,  not  even  excepting  the  difficult  case 
of  South  America,  it  has  not  only  mitigated  unquestion- 
able evils,  including  the  danger  of  domestic  war,  but  it  has 
proved  to  be  the  vehicle  of  progress  and  internal  develop- 
ment. Again,  with  the  one  exception  of  Germany,  it  may 
fairly  be  claimed  that,  in  all  modern  history,  no  Federal 
State  has  been  either  an  aggressive  or  an  oppressive  State 
— a  claim  which  can  certainly  not  be  made  on  behalf  of 
military  Leagues.  The  difficulties  of  the  necessarily  some- 
what complicated  machinery  of  federalism  have  been 
easily  overcome,  at  any  rate  where  the  will  to  overcome 
them  has  been  present.  It  is  a  system  which  is  extra- 
ordinarily adapted  to  different  circumstances.  Provided 


288  THE   STATE   AND   THE   NATION 

only  that  the  essentials  of  strength  against  attack,  power 
to  preserve  internal  order,  ability  to  decide  disputes  and 
to  give  formal  sanction  to  inevitable  changes,  are  accorded 
to  the  federal  government,  the  functions  of  the  latter  may 
be  restricted  in  such  a  way  as  to  infringe  no  whit  upon  the 
free  self-development  of  the  several  units  within  its  orbit; 
while,  on  the  other  hand,  its  capacity  to  act  decisively  in 
great  crises  has  been  convincingly  illustrated  by  recent 
events.  Above  all,  it  makes  no  claims  which  offend  the 
conscience  of  mankind;  though  it  may,  perhaps,  offend 
some  deep-seated  prejudices.  It  is  an  aim  worthy  the 
struggle  which  its  realisation  must  undoubtedly  entail. 

Another  suggestion  of  considerable  importance  in  State 
organisation  is  that  which  proposes  to  abandon  the  simple 
test  of  the  majority  vote  in  electoral  contests,  in  favour  of 
other  schemes,  alleged  to  be  more  satisfactory,  for  ascer- 
taining the  will  of  the  electors.  The  proposal  takes  many 
forms,  which  may  be  conveniently  classed  together  under 
the  familiar  name  of  PROPORTIONAL  REPRESENTATION, 
though  it  is  clear  that  they  are  not  all  based  on  the  same 
principles.  Broadly  speaking,  these  schemes  have  two 
objects — one,  to  substitute  "interest"  for  locality,  as  the 
electoral  unit  or  constituency,  the  other  to  enable  a  vote 
cast  for  candidate  A  to  be  transferred  to  candidate  B,  in 
the  event  of  the  vote  for  A  being  either  needless  or  futile. 

The  first  object  may  be  limited  or  unlimited,  i.e.  the 
proposal  may  be  either  to  increase  the  area  of  existing 
constituencies  in  such  a  way  as  to  give  every  elector  a 
choice  among  a  long  list  of  candidates  for  a  large  number 
of  seats,  or  to  throw  the  whole  of  the  constituencies  of  the 
State  into  one.  The  rashness  of  the  latter  proposal  is  self- 
evident;  and  it  has  now  been  practically  abandoned.  But 
the  former  has  many  advocates  of  high  position  and 
character;  and  their  proposals  are,  obviously,  quite 
feasible  without  any  great  change  in  electoral  machinery. 

The  second  object  is,  however,  regarded  by  the  pro- 
moters of  the  new  principle  as  their  cardinal  aim;  and  it 


PROPOSALS   OF   CHANGE 


289 


necessarily  involves  the  introduction  of  great  complexity 
into  election  proceedings.  The  method  of  the  simple 
majority  vote  is  so  obvious,  that  a  child  can  understand  it. 
A,  B,  C,  and  D  are  candidates  for  two  vacant  seats.  Each 
elector  has  two  votes.  He  can  give  one  to  each  of  two 
candidates,  or  one  to  one  only. x  His  votes,  once  given,  are 
unalterable.  The  two  candidates  who  receive  the  largest 
number  of  votes  are  elected.  In  all  representative  assem- 
blies which  had  shaken  themselves  free  from  the  medieval 
system  of  "estates,"  or  orders  of  society,  this  system  pre- 
vailed without  exception  till  the  middle  of  the  nine- 
teenth century.  It  is  obvious  that,  mainly  owing  to  in- 
equality of  numbers  in  different  constituencies,  it  does  not 
render  it  certain  that  an  election  will,  with  mathematical 
accuracy,  enable  a  majority  of  the  voters  in  one,  or  even  in 
all,  of  the  constituencies  of  a  State  to  be  sure  of  electing  a 
majority  of  representatives.  Take,  for  example,  three 
neighbouring  "single-member"  constituencies,  one  con- 
taining 2000,  another  3000,  and  the  third  4000  electors. 
Suppose  each  of  them  to  be  contested  by  three  candidates 
- — A,  B,  and  C.  Nothing  is  easier  than  to  prove,  on  paper, 
that  (1)  the  successful  candidate  in  each  constituency  may 
only  obtain  a  minority  of  the  total  votes,  and  (2)  the  three 
successful  candidates,  though  all  of  the  same  party  colour, 
may  not  obtain  a  majority  of  the  whole  of  the  electors  in  the 
three  constituencies.  This  possibility  may  be  expressed  in 
tabular  form. 


Constituency. 

Total  votes. 

A's  votes. 

B's  votes. 

C's  votes. 

X 
Y 
Z 

2000 
3000 
4000 

850 
1  200 
1400 

500 
1050 
1350 

650 
750 
1250 

9000 

3450 

2900 

2650 

1This   is   known,   technically,   in   England   as    "plumping."   It 
may  have  an  important  influence  on  the  result,:  of  an  election. 


290  THE   STATE   AND   THE  NATION 

Thus,  the  three  A's,  though  none  of  them  received  the 
votes  of  an  absolute  majority  of  his  constituents,  nor  did 
they  all  three  receive  an  absolute  majority  of  the  votes  of 
the  three  constituencies,  gain  all  three  seats.  It  may  even 
be  that,  where  the  contest  is  extended  over  many  con- 
stituencies, the  total  votes  cast  for  the  B's  in  all  constituen- 
cies outnumber  the  total  votes  cast  for  the  A's,  the  successful 
candidates. 

This  drawback  has  been  so  far  admitted,  that  some 
electoral  systems  make  provision  for  a  "second  ballot." 
In  these  systems,  where  there  are  more  candidates  than 
seats,  any  successful  candidate  who  has  not  obtained  an 
absolute  majority  of  the  votes  cast,  must,  if  he  wishes  to 
retain  his  seat,  submit  to  a  process  whereby  the  candidates 
at  the  bottom  of  the  first  poll  are  withdrawn,  and  the 
electors  vote  again  only  for  the  candidates  with  a  fair 
chance  of  success.  And  this  result  can  be  virtually  achieved 
in  a  single  ballot,  by  the  process  known  as  the  "alterna- 
tive vote,"  whereby  an  elector  who  gives  his  vote  to  a 
hopelessly  unsuccessful  or  an  over-successful  candidate, 
may  have  it  transferred  to  another  named  candidate,  who 
may  be  within  reach  of  a  majority. 

But  the  extremer  advocates  of  proportional  voting  go 
much  further,  and  propose  to  allow  each  elector  to  draw 
up  a  list  of  the  candidates  in  the  order  of  his  preference. 
Then,  on  the  first  count,  so  soon  as  a  candidate  or  candidates 
attain  a  "quota,"  i.e.r  the  total  number  of  the  votes  cast 
divided  by  the  number  of  vacant  seats, x  all  the  superfluous 
votes  cast  for  such  candidates  are  rationed  among  the  un- 
successful candidates  in  accordance  with  the  preferences 
expressed  by  the  electors,  till  more  candidates  with 
"quotas"  are  discovered. 2  If  this  step  does  not  fill  all  the 

1  If  each  of  the  voters  has  only  a  single  effective  vote,  it  is 
quite  clear  that  any  candidate  who  obtains  more  than  the  "quota" 
is  bound  to  be  elected. 

1  Of  course  the  whole  of  the  votes  have  to  be  thrown  again 
into  the  count,  or  the  falling  of  the  second  choices  would  de- 
pend on  the  accidental  choice  of  the  successful  candidates' 
votes  in  drawing  from  the  heap. 


PROPOSALS   OF   CHANGE  291 

vacant  seats,  the  candidates  at  the  bottom  of  the  poll  on 
the  first  count,  beginning  with  the  lowest,  are  deprived  of 
their  votes,  which  are  distributed  according  to  the  prefer- 
ences expressed  on  the  ballot  papers,  till  all  the  seats  are 
filled.  Needless  to  say,  the  counting  of  votes  on  this  system 
is  a  highly  complicated  process,  which  not  one  in  a  hundred 
of  the  average  electors  can  comprehend.  But,  if  the  voters 
are  willing  to  accept  the  decision  of  the  counting  authority 
in  faith,  there  is  no  mechanical  reason  why  the  system 
should  not  be  worked.  The  objections  to  it  are  far  more 
important  than  those  which  arise  from  the  complexities 
of  the  count.  The  minor  objections  may  be  taken  first. 

One  obvious  difficulty  in  such  a  scheme  will  be,  the  diffi- 
culty experienced  by  a  candidate  in  getting  into  and  keeping 
touch  with  his  constituents.  Even  under  the  present 
system,  and  even  in  a  small  and  easily  traversable  country, 
such  as  England,  this  difficulty  is  great  enough;  and  it  is 
likely  to  be  increased  by  the  increase  of  the  electorate. 
It  is  already  a  costly  and  laborious  task  for  a  candidate  to 
cover  an  agricultural  constituency  with  meetings,  to  say 
nothing  of  the  difficulties  of  canvassing,  which  are  not, 
perhaps,  altogether  to  be  deprecated.  It  would  be  far 
worse  if  electoral  areas  were  increased  five-  or  six-fold;  as 
they  must  be,  even  in  the  most  modest  scheme  of  Pro- 
portional Representation.  Then,  too,  there  is  the  danger 
of  "freak"  candidatures.  There  is  no  need  whatever  to 
suppose  that  a  large  number  of  candidates  returned  by  a 
P.R.  system  would  be  of  this  type;  but  there  would  prob- 
ably be  an  appreciable  handful.  Popular  sports,  such  as 
football  and  golf,  could  easily  run  candidates;  so  also  could 
interests  of  a  much  more  sinister  type,  such  as  betting  and 
money-lending.  At  present,  the  beneficiaries  of  such 
interests  are  scattered  all  over  the  country,  and  cannot 
seriously  affect  elections.  With  the  huge  constituencies  of 
P.R.  they  could,  by  a  simple  process  of  postal  organisation, 
elect  their  delegates.  It  may  well  be  that  great  and  essential 
interests,  such  as  shipping,  engineering,  medicine,  and  the 
like,  should  be  specially  represented  in  Parliament;  though 


292  THE   STATE   AND   THE   NATION 

even  that  is  doubtful.  But  there  is  no  case  for  purely 
sectional  representation. 

One  of  the  most  startling  of  the  claims  put  forward  by 
the  advocates  of  P.R.  is,  that  it  will  put  an  end  to  what  is 
commonly  called  "the  caucus,"  i.e.  the  party  organisation 
which  provides  candidates,  and  manipulates  the  party 
funds.  Such  a  claim  almost  takes  away  the  breath.  As 
Bagehot,  one  of  the  acutest  political  thinkers  of  modern 
times,  pointed  out  in  his  humorous  way,  P.R.  will  simply 
multiply  the  opportunities  of  the  wire-puller  indefinitely, 
the  more  it  is  applied.  Confronted  with  an  ever-lengthening 
list  of  candidates,  of  many  of  whom  he  has  never  heard,  the 
elector  will  be  simply  non-plussed  by  the  magnitude  of  his 
task.  He  may  have  little  doubt  of  his  first  two  or  three 
choices.  After  that,  he  will  be  helpless.  Then  will  come 
the  chance  of  the  great  political  organisation.  Its  agents 
will  be  on  the  watch,  and  will  humbly  solicit  the  later 
choices  of  the  elector,  who,  having  gratified  his  own  prefer- 
ences, if  any,  will  give  away  easily  his  later  choices.  Doubt- 
less, a  certain  number  of  candidates  will  be  successful  on 
the  first  count;  though,  the  more  "independent"  the  votes 
of  the  electors,  the  less  likely  is  this  to  be  the  case.  But 
the  clever  manipulation  of  later  choices  will  really  decide 
the  election;  and  this  will  be  in  the  hands  of  the  caucus, 
not  necessarily,  as  at  present,  of  the  political  type,  but, 
quite  possibly,  some  great  commercial  "ring." 

It  will,  however,  hardly  be  denied  by  the  advocates  of 
P.R.,  that  their  chief  claim  to  support  is  based  upon  the 
assertion,  that,  by  the  adoption  of  their  scheme,  Parliament 
(or  whatever  the  elected  body  may  be)  will  become  the  exact 
reflection  of  the  mind  of  the  electorate,  that  is,  of  the 
electorate  in  its  unorganised,  or,  as  they  would  probably 
prefer  to  put  it,  its  "natural"  condition.  That  is  to  say, 
it  will  reflect  the  mass  of  un-coordinated  views  on  all  sorts 
of  subjects  which,  at  the  moment  of  an  election,  make  up 
"public  opinion"  on  all  subjects. 

Let  us  suppose  for  a  moment  that  this  forecast  is  correct. 
Is  it  a  result  to  be  desired?  An  elected  legislature  or  Parlia- 


PROPOSALS    OF    CHANGE  293 

ment  is  a  body  which  exists  for  a  specific  purpose  or  pur- 
poses. The  purely  legislative  body,  that  is  to  say,  the  body 
whose  sole  purpose  is  to  enact  general  rules  of  law,  hardly 
exists  at  the  present  day,  at  any  rate  in  free  countries;  but, 
assuming  such  a  body  to  exist,  will  it  be  likely  to  be  more 
efficient  if  elected  on  the  principle  of  P.R.?  Doubtless 
a  body  so  elected  would  be  full  of  members  bent  on 
legislative  projects.  The  trouble  would  be,  that  they 
would  almost  all  be  bent  on  different  legislative  projects. 
But  experience  shows  that,  if  legislation  is  to  be  effective, 
the  process  of  enacting  it  must  necessarily  be  slow.  In 
dealing  with  such  an  infinitely  complex  thing  as  the  life  of 
a  modern  nation,  effective  legislation  must  take  into 
account  the  varied  effect  of  a  general  rule  of  conduct  on  an 
enormous  number  of  conflicting  interests.  Even  if  a  legisla- 
tive body  were  in  perpetual  session,  the  number  of  well- 
considered  measures  which  it  could  pass  in  a  year  would  be 
very  few.  There  would  be  fierce  competition  for  priority  and 
time.  The  result,  in  such  a  legislative  body  as  is  contem- 
plated by  the  advocates  of  P.R.,  would  either  be  chaos,  or 
a  system  of  bargaining,  by  which  each  little  group  of 
interests  would  bargain  with  the  others  for  an  unobstructed 
passage  for  its  measures,  in  return  for  a  similar  concession. 
The  result  would  be,  either  sterility,  or  a  torrent  of  ill- 
considered  measures.  All  the  preliminary  sifting  out,  the 
choice  between  conflicting  claims,  which  enables  a  political 
organisation  covering  the  whole  country  to  concentrate  on 
a  few  measures,  believed  by  the  majority  of  the  electorate 
to  be  the  most  urgent,  with  a  fair  chance  of  success,  would 
be  wanting,  or  would  occupy  the  time  of  the  elected  body 
to  such  an  extent,  that  there  would  be  no  time  left  for  the 
work  of  legislation  itself. 

But,  in  free  communities,  the  work  of  the  elected  Parlia- 
ment or  congress  is  by  no  means  confined  to  legislation.  It 
is  its  business  to  support  or  condemn,  to  a  large  extent  to 
control,  the  policy  of  the  Executive,  in  financial,  military, 
social,  and  international  affairs.  Such  work  can  only  be 
done  effectively  by  an  organised  body,  knowing  its  own 


294  THE   STATE  AND   THE   NATION 

mind,  and  capable  of  consistent  action.  Short  of  pure 
obstruction,  which  would  bring  government  to  an  end, 
the  attitude  of  a  body  of  specialists,  such  as,  at  its  best,  a 
P.R.  House  of  Commons  or  Representatives  would  in- 
evitably be,  would  leave  the  Executive  uncontrolled.  Its 
support  would  be  worthless,  its  criticism  negligible;  be- 
cause it  would  have  no  power  to  assert  itself.  Either  alter- 
native would  be  the  very  opposite  of  popular  government, 
which  is,  presumably,  the  aim  of  the  advocates  of  P.R. 

To  sum  up.  The  effective  argument  of  the  supporters  of 
P.R.  is  a  claim  for  the  rights  of  Minorities.  But  there  are 
Minorities  and  Minorities.  Where  a  community  is  really 
homogeneous,  a  Minority  only  represents  the  views  of  the 
smaller  number  of  voters,  on  a  matter  upon  which  there  is 
a  difference  of  opinion.  Government  cannot  be  carried  on, 
unless  the  will  of  the  few  gives  way  to  the  will  of  the 
many.  The  remedy  of  the  former  is,  to  convince  the 
latter  that  they  are  wrong,  not  to  demand  that  they  (the 
Minority)  shall  have  their  way  for  a  time.  But  where 
there  is  a  deep-seated  cleavage  in  fundamental  matters — 
religion,  race,  or  mode  of  life — then  it  is,  no  doubt,  de- 
sirable, that  the  views  of  a  substantial  Minority  holding 
these  views  should  be  respected.  But  this  can  be  done 
more  effectively  and  safely  by  allowing  such  a  Minority 
to  create  its  own  independent  organisation,  and  providing 
that  all  matters  specially  affecting  it  shall  require  its  assent, 
or  shall  at  least  be  referred  to  it  for  criticism,  and,  if  neces- 
sary, formal  protest.  No  Government  which  rested  on 
public  opinion  would  regard  such  a  protest  lightly,  or 
invite  it  recklessly.  But  to  abandon  a  principle  which  has, 
on  the  whole,  worked  with  amazing  success  during  the  last 
hundred  years,  in  favour  of  an  untried  experiment,  or  an 
experiment  which,  even  in  the  very  few  cases  in  which  it 
has  been  tried,  has  not  met  with  any  conspicuous  success, 
is  to  run  an  enormous  risk,  not  justified  by  any  arguments 
which  have  hitherto  been  put  forward. 

A  very  different  situation  awaits  the  reformer  in  the 
industrial  world.  Admittedly  the  industrial  system,  as 


PROPOSALS   OF   CHANGE  295 

described  in  the  chapter  on  The  State  and  Industry,  was 
fast  becoming  impossible  before  the  war;  and  the  war  has 
demonstrated  this  truth  with  convincing  clearness.  The 
obvious  dependence  of  the  community  upon  peace  within 
the  industrial  system  in  time  of  external  war,  brought 
about  vast  changes  which,  though  they  were  intended  to 
be  merely  temporary,  have  rendered  a  return  to  the  old 
condition  of  things  almost  inconceivable.  Naturally,  the 
air  has  been  full  of  proposals  of  change,  which,  in  con- 
cluding this  book,  we  should  briefly  examine;  for  they  all 
imply  changes  in  the  organisation  or,  at  least,  in  the  at- 
titude, of  the  State,  except  one,  which  proposes  to  eliminate 
the  State  altogether. 

The  most  conservative  of  these  proposals,  issued  under 
the  auspices  of  the  State  itself,  is  that  known  as  the  Whitley 
Scheme,  after  the  name  of  the  chairman  of  the  Committee 
which  produced  it.  It  has  been  formally  adopted  by 
the  British  War  Cabinet,  as  part  of  the  official  plan  of 
"reconstruction." 

Briefly  put,  the  proposal  suggests  the  formation,  in 
every  great  national  industry,  of  a  concentric  series  of 
councils,  representing  the  workshop,  the  district,  and  the 
industry  as  a  whole.  Each  of  these  councils  is  to  contain 
representatives  of  the  employers  and  the  employed, 
elected,  so  far  as  possible,  by  the  organisations  already  or 
hereafter  to  be  formed  by  those  respective  interests,  i.e. 
the  employers'  associations  and  the  Trade  Unions,  and 
presided  over  by  a  Chairman,  either  elected  by  the  council, 
or  appointed  in  manner  determined  by  the  council.  To 
each  of  these  councils,  meeting  regularly,  will  stand  referred 
the  consideration  of  all  matters  affecting  the  industry  as  a 
whole,  or,  in  the  case  of  the  lower  councils,  the  conduct  of 
the  industry  within  their  spheres  of  operation;  particularly 
about  a  dozen  subjects  enumerated  in  the  Report  of  the 
Whitley  Committee.  These  subjects  include  a  consider- 
able number  of  matters  concerning  the  management  of 
industry,  especially  those  in  which  the  views  of  employers 
and  employed  are  likely  to  come  into  conflict.  They  do  not, 


296  THE   STATE   AND   THE   NATION 

however,  contemplate  any  direct  or  sweeping  change  in 
the  relations  between  employers  or  employed;  the  Report, 
in  fact,  assumes  a  continuance  of  the  present  system, 
whereby  the  economic  control,  both  of  production  and 
distribution,  is  vested  in  the  employing  class,  while  the 
class  of  employees,  or  wage-earners,  bargains  for  a  supply 
of  labour  as  one  of  the  commodities  needed  by  the  em- 
ployers as  a  means  of  production  and  distribution,  but 
takes  no  direct  share  in  the  control  of  these  processes  or 
their  results.  It  is  true  that  the  Report *  proposes  to  leave 
open  the  adoption  of  such  proposals  as  "profit-sharing," 
"co-partnership,"  etc.,  and  even  bestows  a  mild  approval 
on  such  schemes.  But,  on  the  whole,  the  suggestions  of 
the  Report  confine  themselves  to  a  reformation  based  on 
the  existing  system,  and  even  propose  that  the  power  of  the 
State  should  be  employed  to  make  it  permanent. 2 

At  the  other  end  of  the  list  of  proposals  which  the 
war  has  brought  into  prominence,  may  be  noticed  those 
schemes  which  are  included  under  the  title  of  "Syndi- 
calism." As  the  name  implies,  the  chief  source  of  the  idea 
is  French;  and  it  would  seem,  superficially  at  least,  that 
Syndicalism  has  not  taken  much  hold  outside  France. 
Briefly,  it  is  a  proposal  to  place  the  entire  control  of  each 
industry  exclusively  in  the  hands  of  the  workers  in  that 
industry,  organised  on  a  democratic  basis.  All  but  the 
extremists  include  in  the  term  "workers"  those  who,  by 
labour  of  brain  or  hand,  contribute  directly  to  production; 
and  the  more  thoughtful  advocates  of  Syndicalism  admit 
that,  in  order  to  secure  the  application  of  highly  trained 
intelligence  to  the  more  difficult  operations  which  iare 
essential  to  the  successful  conduct  of  industry,  the  persons 
able  to  supply  such  intelligence  must  be  rewarded  with  a 
correspondingly  high  standard  of  living,  partly  to  induce 
them  to  apply  their  gifts,  partly  to  indemnify  them  for 
the  labour  involved  in  developing  them.  But  all  supporters 
of  syndicalist  views  insist,  that  the  selection  of  candidates 

1  First  Report  of  the  Whitley  Committee,  par.  24. 
3  Report,  par.  21. 


PROPOSALS  OF  CHANGE  297 

to  fill  such  responsible  and  highly-remunerated  positions 
shall  be  left  to  the  choice  of  their  fellow-workers,  guided, 
presumably,  by  a  desire  to  secure  merit,  and  not  by  the 
accidents  of  birth,  or  inheritance,  or  personal  favouritism. 
Below  these  responsible  posts,  the  produce  of  industry  is 
to  be  divided,  on  a  more  or  less  equal  scale,  among  the 
whole  of  the  workers,  not  as  wages,  but  as  a  share  of  the 
produce;  the  lowest  receiving  sufficient  to  maintain  a 
decent  standard  of  living,  and  to  guarantee  him  or  her,  as 
well  as  his  or  her  dependents,  against  the  accidents  of  ill- 
health  or  unemployment,  and  the  needs  of  old  age. 

It  will  be  observed  that  the  scheme  of  Syndicalism  aims 
at  doing  away  with  two,  at  least,  of  the  great  factors  which 
at  present  play  an  important  part  in  the  working  of  in- 
dustry, viz.,  rent  and  interest.  The  precise  way  in  which 
these  factors  are  to  be  eliminated  will  vary  with  the  school 
of  Syndicalism  whose  scheme  may  be  under  consideration; 
but  the  general  principle  involves  the  complete  ownership 
by  the  workers  of  the  means  of  production,  the  total 
produce  of  which  is  to  be  divided  amongst  them,  leaving 
no  place  for  the  individual  landowner  or  capitalist.  Again, 
the  proposals  of  the  various  schemes  differ  as  to  the  way  in 
which  the  material  means  of  production — land,  buildings, 
machinery,  tools,  etc. — are  to  be  acquired  by  the  workers. 
They  range  from  simple  expropriation  to  a  moderate  in- 
demnity. With  regard  to  "liquid"  capital,  i.e.  money, 
this  is  to  be  largely  dispensed  with  by  the  use  of  credit, 
the  credit  of  the  entire  industry,  which  will  be  pledged  for 
the  performance  of  the  undertakings  of  its  members. 

Midway  between  the  two  schemes  hitherto  noticed, 
comes  the  attractive  plan  known  as  "National  Guilds."1 
This  proposes  to  adopt  the  Syndicalist  claim,  that  the 
control  of  industry  should  be  vested  in  the  workers,  and 
that  interest,  i.e.  remuneration  for  the  use  of  money  bor- 
rowed from  capitalists  who  contribute  nothing  to  the 

*At  present  the  classical  exposition  of  this  scheme  is  to  be 
found  in  National  Guilds,  by  S.  G.  Hobson  (ed.  A.  R.  Orage), 
1917  (Bell  &  Sons).  But  a  new  and  enlarged  edition  is  anticipated. 


work  of  the  industry  (such  as  the  shareholders  of  joint- 
stock  companies),  shall  disappear.  But  it  differs  radically 
from  Syndicalism,  in  proposing  to  retain  rent,  i.e.  the  re- 
turn for  the  use  of  land,  buildings,  and  machinery,  which 
are,  however,  to  belong,  not  to  individual  owners,  but  to 
the  State.  Moreover,  the  amount  of  this  rent  is  not  to  be  a 
fixed  quantity,  but  will,  in  effect,  be  the  quota  demanded  by 
the  State  from  Industry,  as  its  annual  contribution  to  the 
cost  of  the  general  government;  though  whether  the  propor- 
tion payable  by  each  industry  is  to  be  fixed  by  the  number 
of  its  members,  or  by  the  value  of  the  land,  buildings,  and 
machinery  which  it  employs,  seems  to  be  not  quite  clear. 

On  the  other  hand,  the  scheme  of  National  Guilds  pro- 
poses a  radical  departure  from  the  existing  industrial  sys- 
tem, by  totally  abolishing  the  principle  of  WAGES — i.e.,  the 
purchase  of  labour  as  a  commodity  at  a  fixed  money  value. 
To  the  advocates  of  this  scheme,  it  appears  fundamentally 
wrong,  to  class  human  labour  as  a  commodity  to  be  bought 
and  sold,  like  cattle  or  sugar.  They  urge,  with  great  force, 
that  it  is  useless  to  expect  a  workman  to  take  a  genuine 
interest  in  the  product  of  his  labour,  if  he  ceases  to  have 
any  connection  with  that  product  the  moment  it  has  left 
his  hands.  And  they  claim  that  it  is  unjust  that  the  work- 
man should  be  deprived  of  all  share  in  the  value  of  the 
finished  product,  merely  because  his  economic  position  has 
compelled  him  to  barter  his  labour  for  a  fixed  price.  In 
other  words,  they  argue,  that  the  whole  dividend  resulting 
from  the  product,  less  the  cost  of  raw  material  and  rent  to 
the  State,  should  be  equitably  divided  among  its  producers 
— not  necessarily  (as  we  shall  see)  in  the  form  of  money, 
but  in  some  form  which  would  enable  each  producer  to 
realise  his  due  share  of  the  product. 

It  seems  not  to  be  essential  to  either  of  these  two  latter 
industrial  schemes,  whether  the  control  of  industry  shall 
be  national  or  local;  but,  as  a  matter  of  fact,  the  advocates 
of  National  Guilds  urge  strongly  the  massing  of  industries 
into  a  few  large  National  Guilds,  with,  of  course,  large  pro- 
vision for  local  self-government.  On  the  other  hand, 
Syndicalism,  probably  on  account  of  its  French  origin, 


PROPOSALS   OF   CHANGE  299 

seems  to  prefer  independent  local  units,  doubtless  federated 
for  certain  general  purposes.  Both  schemes,  however, 
assume  the  complete  "democratisation"  of  industry,  and 
the  elimination  of  the  purely  capitalist  class.  But,  while, 
as  we  have  seen,  Syndicalism  aims  at  the  elimination  of 
the  State,  the  advocates  of  National  Guilds  propose  only  to 
relieve  the  State  of  its  financial  and  industrial  duties, 
leaving  to  it  the  more  purely  political  duties,  such  as  the 
preservation  of  external  and  internal  order,  the  administra- 
tion of  justice,  public  hygiene,  and  other  functions  which 
directly  concern  the  interests  of  the  community  as  a  whole. 

The  advocates  of  National  Guilds  point  out,  with  great 
force,  that  the  attempt,  on  the  part  of  the  State,  to  interfere 
in  industrial  problems,  even  with  the  best  intentions,  is  not 
only  unlikely  to  be  successful,  but  that  it  has  a  positively 
bad  effect,  by  introducing  into  State  politics  elements  and 
persons  unsuited  for  admission  there — that,  for  example, 
the  influence  of  the  representatives  of  great  industrial 
interests  in  legislative  bodies  has  resulted  in  waste  of  time 
which  should  have  been  devoted  to  higher  purposes,  and 
has  led,  in  some  cases,  to  positive  corruption.  They  urge, 
for  example,  that  railway  measures  would  be  much  more 
effectively  dealt  with  by  a  great  national  Transport  Guild, 
than  by  a  House  of  Commons,  composed  mainly  of  amateurs 
in  railway  matters,  but  swayed  by  a  few  deeply  interested 
experts,  and  that  technical  education,  which  is  essentially 
sectarian,  should  be  entrusted  to  the  Guild  for  whose  indus- 
try it  is  a  training,  leaving  the  more  fundamentally  impor- 
tant and  difficult  questions  of  humane  and  liberal  education 
to  the  State. 

There  are,  of  course,  quite  obvious  dangers  and  diffi- 
culties attendant  on  the  working  of  such  a  scheme  as  has 
been  here  outlined,  to  say  nothing  of  the  difficulty  of  bring- 
ing it  into  existence.1  Every  monopoly  suggests  danger; 

1  National  Guildsmen,  apparently,  believe  that  a  gradual  amal- 
gamation of  Trade  Unions,  followed  by  a  final  "strike"  on  a  great 
scale,  would  bring  their  scheme  to  birth.  The  Syndicalists,  whose 
programme  includes  "confiscation,"  do  not  shrink  from  sterner 
measures. 


though  a  monopoly  shared  by  so  many  persons  as  a  National 
Guild  is  likely  to  contain,  is  not  so  likely  to  prove  dangerous 
as  a  monopoly  controlled  by  a  small  Trust  or  Ring.  But  a 
scheme  of  National  Guilds  would,  almost  inevitably,  imply  a 
Guild  Congress,  to  which  all  the  Guilds  would  send  delegates 
for  the  discussion  of  common  interests;  and  such  a  Con- 
gress might  be  trusted  to  prevent  any  abuse  of  a  monopoly, 
which  would,  in  all  probability,  severely  affect  the  members 
of  all  the  other  Guilds.  Much  more  serious  is  the  amount  of 
regimentation  which  such  a  system  would  involve; though, 
again,  it  may  well  be  doubted  whether  it  would  amount  to 
much  more  than  the  average  skilled  worker  now  undergoes 
through  the  action  of  the  State,  his  Trade  Union,  and  his 
employer,  while  it  would  have  the  redeeming  quality  of 
being,  at  least  indirectly,  self-imposed.  For  it  is  not,  ap- 
parently, suggested,  that  industrial  enterprises  shall  be 
undertaken  by  a  National  Guild  as  a  whole;  though  all 
enterprises  undertaken  by  the  members  of  a  Guild  will  have 
io  be  undertaken  on  Guild  conditions,  as  to  prices,  hours  Di' 
labour,  standard  of  quality,  and  the  like.  A  troublesome, 
but,  probably,  quite  manageable  problem,  would  be  the 
"overlapping  job,"  i.e.  the  undertaking  which  involves  the 
work  of  two  or  more  Guilds,  such  as  the  building  of  a  reser- 
voir, or  the  construction  of  a  motor  omnibus.  But  it  can 
hardly  be  supposed  that  a  system  which,  even  in  its  imper- 
fect form,  was  capable  of  producing  the  matchless  and 
complicated  perfection  of  the  medieval  cathedral,  would,  in 
the  light  of  modern  experience,  fail  to  co-ordinate  the  ef- 
forts of  different  Guilds. 

One  particularly  attractive  feature  of  the  scheme  of 
National  Guilds  is,  apparently,  its  bold  application  of  the 
principle  of  mutual  insurance.  While  the  Guild,  as  a  whole, 
would  not  undertake  the  carrying  out  of  any  enterprise 
(except  that  it  would,  probably,  buy  raw  materials  for 
distribution  among  its  members),  it  would  guarantee  the 
performance  of  the  work  of  any  member,  undertaken  in 
accordance  with  its  rules.  This  action  would,  it  is  believed, 
enormously  strengthen  the  credit  of  the  Guild,  and  thus, 
incidentally,  solve  the  problem  of  liquid  capital;  for, 


PROPOSALS   OF   CHANGED          301 

'  despite  the  discredited  "Wages  Fund" 1  theory,  it  is  now 
generally  recognised,  that  work  involving  outlay  and 
delay  is  really  financed  by  CREDIT,  not  by  the  money 
apparently  expended  in  wages  and  material.  The  necessity 
for  a  "gold  reserve,"  i.e.  a  material  guarantee  behind  paper 
money,  arises  solely  from  mistrust;  and,  as  the  National 
Guildsman  argues,  given  complete  mutual  confidence  be- 
tween the  different  Guilds,  the  individual  wants  of  each 
member  might  be  supplied  through  the  medium  of  a  simple 
system  of  paper  tokens  ("guilders"),  showing  the  amount 
of  work  standing  to  each  member's  credit  in  the  books  of 
his  Guild,  and  exchangeable  for  commodities  or  services 
with  any  member  of  any  other  Guild. 

Finally  comes  the  alternative  ideal,  which  the  events  of 
the  war  have  done  so  much  to  illustrate,  of  the  State 
Socialist,  i.e.  the  man  who  advocates  the  taking  over  by 
the  State  of  both  the  means  and  the  processes  of  production 
and  distribution,  in  the  interests  of  the  community  as  a 
whole.  As  has  been  well  said, 2  this  ideal  represents  the 
control  of  industry  by  the  consumer,  instead  of  by  the  pro- 
ducer; for  all  members  of  the  community  are  consumers, 
though  not  all  are  producers,  at  any  rate  producers  of  all 
that  they  consume.  And  there  is,  obviously,  a  good  deal 
to  be  said  for  the  object  of  this  ideal;  for,  inasmuch  as  one 
of  the  ends  of  production  is  consumption,  it  would  appear 
obvious,  that  the  consumer  should  have  a  voice  in  directing 
the  processes  of  production. 

But  the  arguments  against  State  Socialism  are  over- 
whelming; even  though  it  may  be  superior  to  the  pre-war 
condition  of  unrestricted  competition,  with  its  innumerable 
opportunities  for  exploitation  and  fraud.  In  the  first  place, 
it  involves  an  immensely  complicated  machinery,  including, 
not  merely  an  elaborately  organised  supervising  staff,  but, 
below  that,  all  the  technical  industrial  staff  necessary  for 

*The  "Wages  Fund"  theory  taught  that  no  enterprise  of  a 
great  kind  could  be  begun  without  the  previous  accumulation 
of  a  money  fund. 

*  Cole,  The  World  of  Labour,  p.  345- 


302  JHE   STATE  AND   THE   NATION 

the  actual  conduct  of  industrial  enterprise.  It  would,  in 
fact,  mean  the  whole  industrial  machinery  involved  in 
Syndicalism  or  Guild  Socialism,  plus  a  machinery  evolved 
for  the  purpose  of  inspecting,  reporting  upon,  auditing, 
and  supervising  the  work  of  the  strictly  industrial  organisa- 
tion. If,  as  would  almost  inevitably  be  the  case,  this  State 
machinery  were  largely  localised — e.g.  in  municipal  and 
county  councils — further  complexity  would  arise,  in  the 
links  required  to  keep  the  central  government  in  touch  with 
the  local  bodies.  It  is  not  necessary  to  speculate  upon  the 
type  of  official  who  would  be  produced  by  such  a  system; 
though  the  precedents  are  not'  altogether  happy,  and  the 
selection  and  appointment  of  the  enormous  number  of 
officials  required  would  afford  tempting  opportunities  for 
corruption  and  favouritism.  A  far  greater  objection  is,  the 
overwhelming  power  which  such  a  system  would  inevitably 
place  in  the  hands  of  a  small  number  of  high  officials,  com- 
pared with  which  the  power  wielded  by  Kings  and  Parlia- 
ments in  the  past  would  be  but  a  shadow.  And  this  at  a 
time  when  it  may  be  safely  said,  that  the  experiences  of 
recent  years  have  hardly  tended  to  increase  the  confidence 
of  communities,  with,  perhaps,  the  single  exception  of 
America,  in  their  rulers.  It  is  true  that,  even  in  some  coun- 
tries where  the  instinct  of  personal  dignity  and  freedom  is 
genuine,  as,  for  example,  in  France,  there  appears  to  be  a 
leaning  towards  a  solution  of  this  type.  But  the  instinctive 
dislike  of  the  English-speaking  world  for  bureaucracy  is 
probably  founded  on  thoroughly  solid  grounds;  and  it  is 
almost  impossible  to  believe,  that  a  great  nation  which  has 
once  tasted  the  freedom  of  individual  initiative,  will  ever 
be  willing  to  relinquish  it  in  favour  of  bureaucratic  control. 
Moreover,  the  heroic  remedy  of  State  Socialism  appears 
to  be  entirely  uncalled-for  by  the  facts  of  the  case.  Apart 
from  the  unorganised,  but  immensely  powerful,  check  on 
possible  errors  of  production  which  exists,  in  a  mere 
refusal  on  the  part  of  the  consumer  to  purchase  goods 
which  he  does  not  appreciate,  it  is  possible  for  a  simple 
organisation  of  the  voluntary  type  to  protect  the  consumer 


PROPOSALS   OF   CHANGE  303 

against  obvious,  and  what  may  be  called  casual,  abuses  of 
production;  as  witness  the  very  real  success  of  so-called 
Co-operative  Distribution.  If  we  can  imagine  it  possible 
that,  imitating  the  vices  of  the  Trusts  and  Rings,  or  of 
some  sections  of  Labour,  in  the  past,  a  deliberate  attempt 
should  be  made  by  a  producing  Syndicate  or  Guild,  dealing 
with  one  or  more  of  the  necessaries  of  life,  to  hold  the  com- 
munity to  ransom,  such  an  attempt  would  promptly  meet 
with  a  stern  reply  from  the  other  Syndicates  or  Guilds,  all 
of  whose  members  would  inevitably  be  consumers  of  the 
necessaries  withheld.  For  it  is  of  the  essence  of  modern 
industry,  with  its  elaborate  specialisation,  that  every 
branch,  even  the  most  powerful,  is  dependent  for  its  suc- 
cess on  the  co-operation  of  other  branches.  Thus,  for  ex- 
ample, if  the  Agricultural  Syndicate  or  Guild  should  fix  an 
unreasonable  price  for  milk,  it  would  not  be  difficult  for  the 
Engineering  Syndicate  or  Guild  to  refuse  to  produce  agri- 
cultural machinery.  But  the  obvious  place  for  the  settlement 
of  disputes  of  such  a  kind  would  be  the  Industrial  Federa- 
tion or  Congress,  in  which  all  the  different  industries  would 
be  represented,  and  which  would  be  in  a  far  better  position 
to  judge  of  the  merits  of  the  case  than  a  State  Department. 
But,  in  truth,  the  great  safeguard  against  anti-social 
action,  in  a  community  in  which  all  were  actual  or  poten- 
tial workers,  would  be  the  identity  of  interests  which  such 
a  state  of  things  would  produce.  It  may  be,  as  a  matter  of 
abstract  speculation,  impossible  to  decide  between  the 
claims  of  the  producer  and  the  consumer  to  control  the 
processes  of  production;  for  that  question  involves  psycho- 
logical and  ethical  problems  which  are  almost  insoluble. 
But,  in  a  community  consisting  of  individuals,  nine-tenths 
of  whom  were  both  producers  and  consumers,  and  from 
which  the  purely  financial  element — the  men  who,  in  the 
old  conditions  of  industrial  anarchy,  juggled  with  capital 
as  with  counters  in  a  game — was  eliminated,  there  would 
be  at  least  a  fair  working  chance  of  settling  industrial 
disputes  by  a  simple  application  of  the  Golden  Rule:  "Do 
unto  others  as  ye  would  that  they  should  do  unto  you." 


<* 


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8 


WJO, 


INDEX 


ACHAN,  story  of,  31 

Act  of  Parliament  instituted,  212 

Administration     of     justice,     see 

Justice,  administration  of 
Adoption  in  patriarchal  times,  56 
^Ethelbert  of  Kent,  laws  of,  81 
African   coinage,   primitive,    114; 

silent  trade,  103,  104 
Agriculture,  introduction  of,  86  ff.; 

work  in  community,  94 
Alcoholic     liquors,     licences     for 

sale  of,  235 
Alsace-Lorraine,  266 
Alternative  vote,  290 
American   Civil  War,    270,    283; 

Declaration    of    Independence, 

282;  federal  system,  264 
Ancestor  worship,  61,  62,  66,  67 
Ancient  Law,   Sir  Henry  Maine, 

20,  37,  221  n. 

Ancient  Laws  of  Ireland,  99 
Ancient  Society,  L.  H.  Morgan,  24«. 
Animism,  30,  70 
Arbitration  in  trade  disputes,  255, 

256;  Court  in  New  Zealand,  256 
Aristotle's  classification  of  States, 

260 
Armorican  league  in  Central  Gaul, 

124 

Arr£t  Paulette  (1604),  182  ». 
Asiatic  Studies,  Sir  Alfred  Lyall, 

21,  33 

Assize  of  Arms,  203;  of  Clarendon, 
172,  174  n.,  185  n.,  203;  of 
Henry  II.,  174;  of  Jerusalem, 
205;  of  Northampton,  203;  of 
Woodstock,  203 

Australia,  Federation  in,  286; 
Wages  Board  in,  257 

Austro-Prussian  War  (1866),  284, 
285 


Baal  marriage,  52 
Bagehot,  Walter,  292 


Ballot,  second,  290 

Banishment  in  Roman  law,  76 

Barter,  104 

Battle  of  Af  ag/t  LewajFinntann,  100 

Becket,  Thomas  a,  173,  174 

Beena  marriage,  52 

Belfast  Butchers  case,  249  «. 

Benefice,  the  feudal,  141 

Bergson,  H.  L.,  62 

Bilhah  and  Zilpah,  story  of,  57 

Black  Death,  the,  146,  230,  244 

Blackstone,  Sir  William,  157  n. 

Blood  feud,  80,  140,  166 

Bocland,  145 

Bondsman,  44 

Book  of  the  Abbey  of  Clonmacnoise, 

88  Kid 

Books  of  Feuds,  205 
Branding  with  infamy,  74 
Brehon  laws  of  Ireland,  142 
Burke,  Edmund,  195 

Cabinet  system,  evolution  of,  197 

Ca  da  Mostro,  103  ff. 

Canada,  conciliation  in,  257; 
Federation  in,  286 

Cannibalism,  42,  43 

Canon  law,  171 

Capital  and  labour,  245  ff. 

"Capital"  and  "profit,"  deriva- 
tion of,  41 

Capitularies,  202 

Caravan  routes,  establishment  of, 

i°S 

Castes  in  India,  117/1. 
Caucus,  the,  292 
Chancery,  Court  of,  179,  209  n., 

211 

Charlemagne,  139,  142,  148 
Charles  IV.  (Emperor),  164 
Charles  Martel,  142 
Chattels,  transfer  of,  224 
Childbirth,  primitive,  48,  49 
Chivalry,  feudalism  and,  149 


306 


INDEX 


307 


Church  and  probate,  the,  225 

Church's  peace,  166 

City,  development  of  the,  116 

Civil  Code  of  Justinian,  171,  205, 
213;  Code  of  Napoleon  I.,  207 

Clans,  league  of,  131 

Clarendon,  Assize  of,  172,  174  «., 
185  n.,  203;  Constitutions  of, 
174  n. 

Clonmacnoise,  Book  of  the  Abbey 
of,  88 

Cluny  Museum  in  Paris,  32 

Code  of  Justinian,  171,  205,  213; 
of  Theodosian,  202 

Coinage,  Hebrew,  115;  primitive 
African,  114;  the  State  and 
issue  of,  243,  244 

Cole,  G.  D.  M.,  The  World  of 
Labour,  252  n.,  256  «.,  301  n. 

Commerce  and  craftsmanship, 
102  ff. 

Commercial  communities,  230, 
231;  intercourse,  102,  103 

Common  law,  84,  206,  272 

"Common  recovery,"  228  n. 

Community:  A  Sociological 
Study,  Professor  Maclver,  4,  9 

Community,  agricultural  work 
in,  94;  and  civilisation  con- 
trasted, 5;  commercial,  230, 
231;  village,  99,  too 

Competition,  fair  and  unfair,  4 

Competitive  character  of  State, 
130 

Conciliation  in  Canada,  compul- 
sory, 257 

Confederation  in  Canada,  Aus- 
tralia, and  South  Africaj  286; 
North  German,  284,  285 

Congress,  Guild,  300;  of  Vienna, 
282;  of  Westphalia  (1648),  281 

Conquest,  migration  and,  121,  122 

Conrad  the  Franconian,  152 

Consecration  of  priests,  69 

Constitutions  of  Clarendon,  174  n. 

Contractual  marriage,  58 

Co-operation,  distributive,  303; 
primitive,  i,  2 

Co-operative  cultivation,  97 

Copyright,  patents  and,  234 

Corporation  or  legal  person,  231, 
232 


Coulter,  introduction  of  the  iron, 

109 
Council,    common,    161,    163;   of 

Elders,  59,  60;  of  the  Magnates, 

161;  of  Orleans,  166 
Court  of  Chancery,  179,  209  n., 

211  •  of  Exchequer,  211 
Courts  merchant,  179;  of  Common 

Law,  179 

Craft  gild,  no,  in 
Criminal  and  civil  law,   77,   78; 

justice,  administration  of,  170, 

173 

Crops,  rotation  of,  92,  93 

Cultivation,  co-operative,  97;  ex- 
tensive, 91;  field-grass  system 
of,  92 

Curfew,  Ordinance  of  the,  203 

Customs  dues,  242 

Damascus,     steel     smelting     in, 

109 
Danby,  impeachment  of  Earl  of, 

273 

Danegeld,  177  n.,  242 
Darwin,  Charles,  277 
Death  duties,  239 
Declaration      of      Independence, 

American,  282 

Defence  of  the  Realm  Acts,  275 
De   Jure   Belli   et   Pads    (1625), 

Hugo  Grotius,  261 
Dialogues  of  the  Exchequer,  222, 

243 
Dicey,  Professor,  Introduction  to 

the   Study   of  the   Constitution, 

167  n.,  265  n. 

Diminishing  returns,  law  of,  90 
Direct  taxation,  242 
Distress,    the   procedure   of,    80; 

for  rent,  223 

Distributive  co-operation,  303 
Domesday  Book,  98,    159,    177, 

242 
Domestication    of   wild    animals, 

38,  39 

Dominions,  Responsible  Govern- 
ment in  the,  269 

East  India  Company,  231 
Ecgberht,  125 
Edgar,  202 


3o8       THE    STATE    AND    THE    NATION 


Edward  I.,  141,  160,  164 

Elder  Edda,  192 

Elders,  Council  of,  59,  60 

Elegit,  writ  of,  228  n. 

Enclosure  movement,  229,  230 

Endogamy,  51 

Enqufite  par  tourbe,  207 

Escheat  denned,  155  n.;  of 
intestate  property,  226  n. 

Establishments  of  Louis  IX., 
140 

Exchange  and  production,  112, 
238;  between  separated  com- 
munities, 102;  primitive  medium 
of,  115 

Exchequer,  Court  of,  211;  Royal, 

159 

Exogamy,  51,  58 
Extensive  cultivation,  91 

Factory  Acts,  255 
Fallow  period,  91 
Federal  State,  n;  systems  of, 

265-8 
Federation,  growth  of,  265  ff.;  in 

Holland,  282 
Ferm  of  the  borough,  147 
Fetishism,  30 
Feudal  benefice,  141 
Feudalism     and     chivalry,     149; 

and  class  distinction,  148;  legal 

aspect   of,    139,    225;    military 

allegiance     under,     137,     138; 

the  State  and,  135  ff. 
Field-grass  system  of  cultivation, 

92 

Fieri  facias,  writ  of,  224 
Finntann,  Battle  of  Magk  Lena, 

100 
Fison,  Rev.  Lorimer,  and  A.  W. 

Howitt,  Kamilaroi  and  Kurnai, 

24  n. 

Fitzherbert,  Sir  Anthony,  229  n. 
Five    Hundred    Points    of    Good 

Husbandry,     Thomas     Tusser, 

229  n. 

Folkland  or  village  allotment,  144 
Folk-laws,  204 

Frederick  II.  (Emperor),  164,  207 
Freemasonry,  8 
Fustel  de  Coulanges,  L'Invasion 

Germanique,  123 


Gaius,  Roman  jurist,  44 

Galton,  Sir  Francis,  Narrative  of 

an  Explorer  in  Tropical  South 

Africa,  40 
Gambling,  44 
German     Confederation,     North, 

284,  285 

Germania,  Tacitus,  53 
German  Mirror,  205 
Germany,  land  law  in,  207,  208 
Geschichte    des    Hansischen    Stal- 

hofes,  J.  M.  Lappenberg,  113 
Gibbon,  Edward,  122 
Gifts,    exchange    of    ceremonial, 

105,  106 
Gild,  craft,  no,  in;  merchant, 

112 
Gillen,    F.    J.,    see    Spencer   and 

Gillen 

Glanville,  Ralph,  177 
Gloucester  (1276),  Statute  of,  173, 

178 

Golden  Bull  of  Charles  IV.,  164 
Government  of  the  British  Empire, 

197  n. 

Grand  Assize  of  Henry  II.,  177 
Grand   Jury,   institution  of   the, 

172,  173 

Great  Seal,  King's,  175,  209 
Grey  Goose  Book,  205 
Grotius,  Hugo,  261  ff. 
Guild    congress,    300;    national, 

297  ff 

Hanse  League,  231 

Hebrew  coinage,  115 

Heimskringla  Saga,  152 

Henry  the  Fowler,  152,  154 

Henry  I.,  159 

Henry  II.,  141,  172  ff.,  177,  185  n., 

203 

Hildebrand,  Pope,  126 
Hobbes,    Thomas,    Leviathan,    or 

the  Matter,  Form  and  Power  of 

a  Commonwealth,  263 
Hobson,  S.  G.,  National  Guilds, 

297  n. 

Holland,  Federation  in,  282 
House    of     Commons,     191;    of 

Lords,  final  court  of  appeal,  175 
House  Father,  dominion  of  the, 

37,  54;  in  Roman  law,  75 


INDEX 


309 


Howitt,  A.  W.,  see  Fison,  Rev. 

Lorimer 

Hugh  Capet,  152 
Hundred,  Ordinance  of  the,  168, 

202;  origin  of  the,  168,  169 

Industry,  derivation  of,  45;  the 

State  and,  241  S. 
Inheritance     of     property,     220; 

under  patriarchal  law,  50;  under 

Roman  law,  55 
Innocent  III.,  126 
Institution,  the  State  as  an,  10, 

n,  132  ff.,  163 
Institutions,    early  political,    150 

ff.;  survey  of  primitive,  19  ff. 
Intercourse,  commercial,  102,  103 
Intermarriage   between  relatives, 

25 

Intestate,  property  of,  226  n. 
Introduction   to   the  Study  of  the 

Constitution,    Professor    Dicey, 

167  n.,  265  n. 
Invasion   Germanique,    Fustel   de 

Coulanges,  123  » 

Investitures,  contest  about,  146 
Ireland,    Brehon    laws    of,    142; 

landownership  in,  13,  14 
Iron  working,  108 

Jacobite  rising  (1745),  13 
Janissaries  of  Turkey,  128 
Japan,  representative  government 

in,  198 

Jerusalem,  Assize  of,  205 
Jobson,  Captain  (explorer),  105 
John,  Magna  Charta  and,  161,  163 
Judicial  Committee  of  the  Privy 

Council,  268 

Jury  system,  172,  175  ff. 
Justice,  administration  of,  170  ff.; 

denned,    165;    of    the    Peace, 

174,  180 
Justinian,  Code  of,  171,  205,  213    ! 

Kamilaroi     and     Kurnai,     Rev. 

Lorimer     Fison    and    A.     W. 

Howitt,  24  «. 

King,  the  office  of,  128,  129 
King's  Courts  of  Common  Law, 

179;    Great   Seal,    209;    peace, 

166,  167 


Kingsley,  Miss  Mary,  Travels  in 
West  Africa,  21;  West  African 
Studies,  21,  29  ff.,  50,  80  «., 
82  n.,  91  n.,  92  «.,  103  ff.,  114 

Kinship  and  Marriage  in  Early 
Arabia,  Dr.  Robertson  Smith, 
52 

Kinship  through  males,  37  ff. 

Knight-service,  138 

Knut,  168 

Labour,  capital  and,  245  ff. 
Land  law  in  Germany,  207,  208; 

in   Norway,    208;   in   Sweden, 

208 

Landownership  in  Ireland,  13,  14 
Land  tenure,  144 
Lappenberg,  J.  M.,  Geschichte  des 

Hansischen  Stalhofes,  113 
Law  and  Politics  in  the  Middle 

Ages,  133  n.,  135,  221  n. 
Law,   Canon,   171;  common,   84, 

206,    272;   connection   between 

religious    and    patriarchal,  83; 

definition     of,     202;     martial, 

201;    of    diminishing    returns, 

oo;    patriarchal,     50,     71     ff.; 

procedure,    79;  primitive  form 

of,  31;  religion  and,  separated, 

84,   85;   religious  and  secular, 

71  ff. 
League  of  clans,  131;  of  nations, 

276  ff. 
Legislation,   limits  of,    215,    216; 

the  State  and,  199  ff. 
Levari  facias,  writ  of,  224 
Leviathan,    or   the   Matter,    Form 

and  Power  of  a  Commonwealth, 

Thomas  Hobbes,  263 
Licences    for    sale    of    alcoholic 

liquors,  235 

Limited  liability  company,  233 
Lit  de  justice,  182 
Louis  IX.,  140,  170 
Louis  XL,  158 
Louis  XIV.,  134,  158 
Lyall,  Sir  Alfred,  Asiatic  Studies, 
•     21,  33 

Maclver,   Professor,   Community: 

A  Sociological  Study,  49 
Magic,  black  and  white,  33 


310       THE    STATE   AND    THE    NATION 


Magna  Charta,  161,  163 

Maine,  Sir  Henry,  Ancient  Law, 
20,  37,  221  n. 

Majority  vote,  193,  195 

Mamelukes  of  Egypt,  128 

Manorial  courts,  77;  system,  222 

Mansfield,  Lord,  179 

Maoris  of  New  Zealand,  13,  42 

Market  law,  113 

Marriage  by  capture  and  purchase, 
51  ff.;  contractual,  58;  por- 
tion under  Roman  law,  59 

Martial  law,  201 

Medicine-men,  32,  33 

Melli,  103,  114 

Mendicant  Orders,  235  ». 

Merchant  gild,  112 

Metals  and  metal  working,  106, 
107 

Migration  and  conquest,  121,  122 

Military  authority  in  the  State, 
200 

Militia  system,  127,  141 

Minorities,  rights  of,  294 

Mogul  case,  249,  254 

Morgan,  L.  H.,  Ancient  Society, 
24  n. 

Mother-right,  27,  50 

Motley,  J.  L.,  282 

Mythology  of  the  Greeks,  68 

Napoleon  L,  131;  civil  code  of, 

207 
Narrative     of    an     Explorer     in 

Tropical     South     Africa,     Sir 

Francis  Gallon,  40 
Nation  and  race  confused,  6,  7 
National  Guilds,  297  ff. 
National  Guilds,   S.   G.   Hobson, 

297  n. 

Nations,  League  of,  276  ff. 
Native  Tribes  of  Central  Australia, 

The,  Spencer  and  Gillen,  21 
New  Zealand,  Arbitration  Court 

in,  256;  Maoris  of,  13,  42 
Niger,  103 

Northampton,  Assize  of,  203 
Norway,  Land  Law  of,  208 

Offerings  to  the  dead,  64 
Omens,  32 
Ordeal,  trial  by,  82 


Order  in  Council,  213,  214 
Ordinance   of    the    Curfew,    203; 

of  the  Hundred,  168,  202 
Orleans,  Council  of,  166 
Osborne  case,  251 

Parliament  instituted,  Act  of, 
212;  derivation  of,  188  n.; 
early  functions,  242,  243 

Party  system,  development  of, 
195,  196,  269 

Pastoral  life,  46,  47 

Patents  and  copyright,  234 

Patriarchal  law,  50,  71  ff.;  polyg- 
amy, 42;  religion,  61  ff.; 
society,  organisation  of,  48  ff. 

Peasants'  revolt  (1381),  244 

Pepin  the  Short,  142 

Petitions,  royal,  210 

Petty  jury,  1 79 

Pharaoh's  dream,  story  of,  87 

Pitt  Rivers  Museum  in  Oxford,  21 

Place,  Francis,  Life  of,  by  Graham 
Wallas,  248  n. 

Plea  Rolls  of  the  King's  Courts, 
208,  209 

Ploughing  in  common,  94 

Plumping  in  elections,  289  n. 

Pocket  boroughs,  191 

Police,  165  ff. 

Political  institutions,  early,  150  ff.; 

^organisation,  varieties  of,  259  ff.; 
representation,  early  example 
of,  169;  representation,  the 
State  and,  183  ff. 

Polygamy  in  patriarchal  times,  42 

Predestination,  doctrine  of,  68 

Prerogative,  royal,  162;  States, 
distinction  between  common 
law  and,  272 

Priests,  consecration  of,  69 

Primitive  childbirth,  48,  49;  coin- 
age, 114;  form  of  law,  31;  man, 
life  of,  22  ff.;  medium  of  ex- 
change, 115;  religion,  29,  30; 
sexual  intercourse,  24,  25 

Primitive  Culture,  Professor  E.  B. 
Tylor,  21 

Printing,  art  of,  no 

Private  Bill  legislation,  origin  of, 
212 

Privy  Council,  162,  268 


INDEX 


Probate,  the  Church  and,  225 
Procedure,  primitive  legal,  79  ff.; 

Anglo-Norman,  175  ff. 
Proceres,  188 
Production    and    exchange,    112, 

238;  and  property,   means  of, 

219,  220 
Profit,  derivation  of  capital  and, 

4i 

Property  in  land,  225;  of  in- 
testate escheated,  226  w.;  the 

State  and,  218  ff. 
Proportional    representation, 

288  ff. 
Prussian    War,    Austro-    (1866), 

284,  285 

Race,  nation  and,  6,  7 

Recovery,  common,  228  n. 

Reform  Act  (1832),  191 

Register  of  Writs,  208,  209 

Religion  and  law  separated,  84, 
85;  patriarchal,  61  ff.;  primi- 
tive, 29,  30 

Rent,  distress  for,  223;  under  the 
Brehon  laws  of  Ireland,  142 

Repeal  Acts  (1824,  1825),  248 

Representation,  early  example  of 
political,  169;  proportional, 
288  ff.;  the  State  and  political, 
183  ff. 

Representative  government  in 
Japan,  198 

Responsible  government  in  the 
Dominions,  269 

Roman  Catholic  Church,  7 

Rotation  of  crops,  92,  93 

Rousseau,  197 

Royal  Exchequer,  159;  petitions, 
210;  prerogative,  162 

Ruskin,  John,  24 

Sabine  women,  rape  of  the,  51 
Sacrifice,  32 
Saladin  tithe,  156,  223 
Sanctuary,  83 
Sarum,  Oath  of,  176 
Saxon  Mirror,  205 
Secular  law,  religious  and,  71  ff. 
Seebohm,  Dr.  Frederic,  89 
Sexual  intercourse,  primitive,  24, 
25 


Sheriff,  the  office  of,  159 
Shintoism,  62 

Short  History  of  Politics,  135 
Silent  trade  in  Africa,  103,  104 
Slavery,  institution  of,  42 
Slaves  under  Roman  law,  44 
Smith,    Dr.    Robertson,    Kinship 
and  Marriage  in  Early  Arabia, 

51.  52 

Socage  tenant,  145 

Socialism,  State,  301,  302 

Society,  examination  of,  4,  12; 
patriarchal,  48  ff. 

Sovereignty  analysed,  261  ff. 

Spencer  and  Gillen,  The  Native 
Tribes  of  Central  Australia,  21 

Star  Chamber,  180 

State  and  feudalism,  the,  135  ff.; 
and  industry,  the,  241  ff.;  and 
legislation,  the,  199  ff.;  and 
property,  the,  218  ff.;  and 
public  order,  the,  165  ff.;  as 
an  institution,  the,  10,  n, 
132  ff.,  163;  birth  of  the,  121  ff.; 
coinage  of  the,  243,  244;  com- 
petitive character  of  the,  131; 
hereditary,  the,  154;  military 
authority  in  the,  200;  socialism, 
301,  302;  territorial  character  of 
the,  129;  the  federal,  n 

Statute  of  Gloucester  (1276),  173, 
178;  of  Winchester  (1285),  169 

Steel  smelting  in  Damascus,  109 

Sub-infeudation,  139 

Swabian  Mirror,  205 

Sweden,  Land  Law  of,  208 

Swiss  Republic,  Constitution  of, 
281 

Syndicalism,  252,  296,  297 

Tacitus,  Germania,  53 

Taff  Vale  case,  249,  250 

Tagazza,  103 

Taxation,    direct,    242;    schemes 

of,  156,  187,  222 
Tenure,  doctrine  of,  225 
Terrier  or  ground  map,  94,  95 
Territorial  character  of  the  State, 

129 

Testaments  (Wills),  221,  222,  224 
Theodosian  Code,  202 
Tithe,  Saladin,  156,  223 


3i2       THE    STATE    AND    THE    NATION 


Tithings,  168,  169 

Totemism,  25,  26 

Towns,  origin  of,  no 

Trade  Boards  Act  (1909),  257  «.; 

Disputes    Act,    250;    disputes, 

arbitration  in,  255,  256 
Trade  Union  Acts  (1871,   1876), 

249;  Unions  legalised,  248,  249 
Transfer,    freedom    of,    238;    of 

chattels,  224;  of  property,  220 
Travels   in    West   Africa,    Mary 

Kingsley,  21 

Treitschke,  Heinrich  von,  153 
Trespass,  law  of,  222 
Trial  by  jury,  176;  by  ordeal,  82 
Trusts,  development  of,  238 
Tusser,    Thomas,    Five    Hundred 

Points     of    Good     Husbandry, 

229  n. 
Twelve    Tables    of    the    Roman 

Law,  55,  76,  90 
Tylor,  Professor  E.  B.,  Primitive 

Culture,  21 

Union  of  South  Africa,  286 

Vienna,  Congress  of,  282 

Village  allotment  or  folkland,  144; 
communities,  99,  100;  group, 
alien  element  in,  227,  228 

Vote,  alternative,  290;  majority, 
193.  195 


Wages,  nature  of,  298;  Board  in 
Australia,  257;  Fund  theory, 
301 

Waldeck-Rousseau    Law    (1884), 

254 
Wallas,  Graham,  Life  of  Francis 

Place,  248  n. 
Watch,     village     and     burghal, 

169 

Wergild,  114 
West     African      Studies,     Mary 

Kingsley,  21,  29  ff.,  50,  79  n., 

82  n.,  91  n.,  92,  103  ff.,  114 
Westphalia   (1648),   Congress  of, 

281 

Whitley  Report,  295 
William  I.,  141,  159 
Wills,  see  Testaments 
Winchester    (1285),    Statute    of, 

169 

Woodstock,  Assize  of,  203 
Workmen's    Compensation    Act, 

255  n. 
World  of  Labour,  The,  G.  D.  M. 

Cole,  252  «.,  256  n.,  301 
Writ  of   elegit,    228   n.;  of  fieri 

facias,    224;    of    levari    facias, 

224;  of  Summons,  175 
Writs,  Register  of,  208,  209 


Zilpah,  story  of  Bilhah  and,  57 


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